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Using a shotgun to hunt mosquitoes: like a stereotypical character shooting at mosquitoes with a shotgun, George Bush's claim to broad surveillance powers is blasting holes in our constitutional protections.

All of us have seen cartoons of the type in which a pesky fly or mosquito is relentlessly bugging Yosemite Sam or some similar character. Instead of closing the open window that has allowed the annoying pest in and then going after the critter with a fly swatter, Sam jumps up in a fit of exasperation and starts blasting away with the shotgun. When the smoke clears, Sam's house is in shambles and the still-buzzing mosquito lands on Sam's nose.

That cartoon image captures the idiocy, if not the seriousness, of the damage that is being inflicted on our constitutional house in the name of fighting terrorism. Why are all the windows and doors wide open, and why are the fly swatters being kept under wraps, while Yosemite Sam runs amok with his 12-gauge blazing? Although this comparison applies to a number of the Bush administration's efforts in the "War on Terror," this tragi-comic image is especially called to mind by the president's insistence on the need for broad electronic surveillance authority for the National Security Agency (NSA).

On December 16, 2005, the New York Times set off an avalanche with a front-page story under the headline, "Bush Lets U.S. Spy on Callers without Courts." The article by James Risen and Eric Lichtblau reported that shortly after the terror attacks of 9/11, President Bush directed the NSA to monitor telephone calls and e-mail between individuals in the United States and foreign countries, without first seeking court-approved search warrants.

Predictably, the president came under immediate, fierce attack by his usual critics on the left, who cited the NSA eavesdropping as further proof of the administration's rush toward police-state dictatorship. Congressional Democrats, led by the usual suspects--Sens. Teddy Kennedy, Jay Rockefeller, Harry Reid, Barbara Boxer, et al.--demanded investigations of the matter and challenged the president's constitutional authority to order such invasive attacks on the privacy of American citizens.

And, just as predictably, Republican partisans and Bush loyalists jumped immediately into the fray to unquestioningly defend what they insist is the president's constitutional authority and responsibility to protect the nation. Jed Babbin at The American Spectator said of the NSA's domestic spying: "Illegal? I don't think so. A good idea? No, a great idea." As to be expected, Bushbot radiomeister Rush Limbaugh blasted Bush's NSA critics as "saboteurs" and "traitors" who are "sabotaging our ability to wage war on this enemy."

"The NSA program that Bush is utilizing is legal, and it's important," declared Limbaugh. The people making a fuss over the NSA eavesdropping are the same folks, averred Rush, who say: "We can't trust the feds. We can't trust Bush. We can't trust Cheney. We can't trust Gonzales. We can't trust Rice. We can't trust Rumsfeld." But those who argue with Limbaugh, that we must trust George Bush with these broad surveillance powers, forget that we will not be able to put those same powers back into the bottle when a Democrat administration (which they wouldn't trust) takes command. If the thought of George Bush exercising unrestricted surveillance powers doesn't worry you, then think: Hillary Clinton, Joe Lieberman, Dianne Feinstein, Nancy Pelosi.

The crucial point that is being missed by all those who have gotten wrapped up in the partisan squabbling is that we are not supposed to trust any man with unchecked power. "In questions of power," Thomas Jefferson wisely warned, "let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

Unchecked and Unbalanced Power

"I can understand concerns about this program," the president said during his January 11, 2006 "War on Terror" discussion in Louisville, Kentucky. "Before I went forward, I wanted to make sure I had all the legal authority necessary to make this decision as your President. We are a rule--a country of law. We have a Constitution, which guides the sharing of power. And I take that--I put that hand on the Bible, and I meant it when I said I'm going to uphold the Constitution.... I have the right as the Commander-in-Chief in a time of war to take action necessary to protect the American people. And secondly, the Congress, in the authorization, basically said the President ought to--in authorization of the use of troops--ought to protect us."

Although he did not mention it specifically, one of the most obvious and important constitutional matters the president's actions collide with is embodied in the Fourth Amendment of the Bill of Rights, which states:</p> <pre> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. </pre> <p>A detailed January 5 analysis of the matter by the Congressional Research Service, the nonpartisan research arm of Congress, disputed the administration's claim that the NSA's domestic spying was justified by the September 18, 2001 Authorization for the Use of Military Force, noting, "it appears unlikely that a court would hold that Congress has expressly or implicitly authorized the NSA electronic surveillance operations." Moreover, it said, "the Administration's legal justification ... does not seem to be as well-grounded as the tenor of that letter suggests."

"The activities I authorized are reviewed approximately every 45 days," President Bush told his December 17 radio audience, in an apparent attempt to posit this self-review as sufficient protection against abuse. "I have reauthorized this program more than 30 times since the September the 11th attacks," he continued, "and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups. The NSA's activities under this authorization are thoroughly reviewed by the Justice Department and NSA's top legal officials, including NSA's general counsel and inspector general."

However, the "Justice Department and NSA's top legal officials" the president refers to are his executive branch minions. The very purpose of the Fourth Amendment is to guarantee checks and balances, requiring both judicial and executive participation in the issuing of any search warrant. Moreover, the participants from both branches are supposed to be put on record: the representative of the executive must swear to the evidence presented and the judge must sign off on the warrant, leaving a paper trail that can reach back to condemn those who abuse this awesome authority.

Bush: I Need Speed

"The activities I have authorized," President Bush says, "make it more likely that killers like these 9/11 hijackers will be identified and located in time." Why can't the administration operate through the provisions of the Foreign Intelligence Surveillance Act (FISA), under which special courts have been established to provide expedited secret warrants for these kinds of circumstances? According to the Bush administration, FISA doesn't provide the "speed and agility" needed to deal with the terrorist threat.

However, the administration has provided no evidence to show that the FISA process is incompatible with national security exigencies. If a national security emergency exists, FISA already provides for intelligence agencies to use electronic surveillance without a warrant--provided that the Attorney General applies for a judicial warrant within 72 hours after initiating the surveillance. And it does not appear that FISA judges have been stingy about issuing the warrants, reportedly only turning down five requests out of more than 19,000 since 1979. If there is need for greater "speed and agility," as alleged, then that is a matter that must be handled legislatively by amending or replacing the law to provide for more FISA judges and making whatever additional changes are necessary for national security.

People unfamiliar with the facts concerning the 9/11 hijackers may have been persuaded by the president's December 17 radio argument in which he stated: "Two of the terrorist hijackers who flew a jet into the Pentagon, Nawaf al Hamzi and Khalid al Mihdhar, communicated while they were in the United States to other members of al Qaeda who were overseas. But we didn't know they were here, until it was too late. The authorization I gave the National Security Agency after September the 11th helped address that problem.... The activities I have authorized make it more likely that killers like these 9/11 hijackers will be identified and located in time."

This argument is deceptive on several counts:

* There is little likelihood that the administration would have been denied a FISA request to monitor the duo's communications if they had requested one.

* Al Hamzi and al Mihdhar were already under FBI surveillance, were living with an FBI informant in San Diego (former San Diego State professor Abdussattar Shaikh), were listed in the local phone book, and were known to be working (illegally, without a work visa) for a notorious San Diego area jihadist.

* FBI Special Agent Stephen Butler tried to get his superiors to take action against al Hamzi and al Mihdhar, but as we saw with other FBI agents around the country who tried to stop other members of the hijack team, Butler was shut down, and he and fellow FBI agents have been prevented from testifying in any of the 9/11 investigations.

* The Bush administration, like the Clinton administration, has retaliated against federal law enforcement agents who have come forward as whistle-blowers to expose negligence and malfeasance that have seriously damaged our national security, especially as it pertains to terrorism.

Questionable Leadership

One of the most inane remarks by Mr. Limbaugh in his December 21, 2005 radio rant quoted above is his charge that the critics of President Bush's NSA policy "are the same people who want no restrictions on any kind of illegal immigration into this country because they want those people to vote for them." Surely he is joking! Rush certainly knows that his hero, President Bush, is the most liberal champion of illegal immigration to have yet occupied the White House, and that it is George W. Bush's further gutting of our immigration and customs enforcement that allowed al Hamzi, al Mihdhar, and their terrorist comrades such easy access to our country.

All of which should cause every freedom-loving American to ask: why is the president demanding vast new powers outside of the constraints of the Constitution? Moreover, why is he asking us to trust him with this authority when he continues to refuse to do those things that are already within his constitutional powers and that would do far more to secure our nation against the terrorist threat he claims is so imminent and serious?

Why not close the doors and windows, break out the fly swatters and take away Yosemite Sam's shotgun before he does fatal damage to us and the republic?
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Title Annotation:ON THE HOME FRONT
Author:Jasper, William F.
Publication:The New American
Geographic Code:1USA
Date:Feb 6, 2006
Previous Article:Bush circumvents torture ban; within hours of signing a bill banning torture, President Bush issued a bill-signing statement that, in effect,...
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