Ministers Of Truth And Love
Over the past few days I've been trying to sort out my thoughts on the news that the president authorized the NSA to conduct warantless domestic surveillance starting in 2002:
While many details about the program remain secret, officials familiar with it said the N.S.A. eavesdropped without warrants on up to 500 people in the United States at any given time. The list changes as some names are added and others dropped, so the number monitored in this country may have reached into the thousands over the past three years, several officials said.In addition to the NYT article, the Washington Post has a complementary report here. Some more highlights from the Times:
Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States including American citizens, permanent legal residents, tourists and other foreigners is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation...[snip]...Bottom line: the Bush administration has since 9/11/01 been conducting a secret war against American republicanism, a war they have prosecuted with more vigor and efficiency and demonstrable success than their ostensible war against Islamo-fascism. For those who have been paying attention to the war on republicanism, it won't be a surprise that the legal/constitutional justification of the domestic spying program turns out to be another John Yoo special:
Traditionally, the F.B.I., not the N.S.A., seeks such warrants and conducts most domestic eavesdropping. Until the new program began, the N.S.A. typically limited its domestic surveillance to foreign embassies and missions in Washington, New York and other cities, and obtained court orders to do so...[snip]...
Some officials familiar with it say they consider warrantless eavesdropping inside the United States to be unlawful and possibly unconstitutional, amounting to an improper search. One government official involved in the operation said he privately complained to a Congressional official about his doubts about the legality of the program. But nothing came of his inquiry. "People just looked the other way because they didn't want to know what was going on," he said...[snip]...
Several senior government officials say that when the special operation first began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.
Mr. Yoo noted that while such actions could raise constitutional issues, in the face of devastating terrorist attacks "the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties." [emphasis mine]"[C]ould be seen as infringements of individual liberties"? So is the claim that domestic spying in peacetime would be an infringement on individual liberty, but that it is not in wartime? Or that it is never an infringement on individual liberty, but in peacetime might be perceived that way? But anything can be perceived any which way at anytime. The closest I can come to making sense of Yoo's proposition is that domestic surveillance is not an infringement on civil liberties at anytime; however, perceiving it as such during peacetime is somehow normatively justified in a way that it is not in war---and in open-ended, barely-defined war, no less. This "could be seen" business just might be the key to everything; if we knew what it meant, I think we'd understand to a significant extent the essential nature of the administration's war, and of the prostrationism subordinate to it. I'm hoping our resident semiotician Jeremy can give an analysis.