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Newsflash |
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Ms. Van Bergen is teaching in Prague this fall semester 2008. She is a lecturer in law at the Anglo-American University in Prague, www.aauni.edu, and also teaches English at Charles University in Prague. |
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Jennifer Van Bergen: The JVB Line
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A Gonzo Argument: Gonzales' Defense of NSA Domestic Spying |
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By Jennifer Van Bergen
O ne wonders how any rational person could be fooled by the absurd argument that was put forth by the Justice Department in January about the Bush-authorized secret NSA spying program. It's an argument that has been made in bits and pieces and in so many words by a variety of Justice Department lawyers and here and there by Attorney General Alberto Gonzales.1
The argument is never fully stated by any of these officials, but put the pieces together and it would read something like this: "We don't think our secret program which spies on US citizens is illegal (even though it violates a federal law), because the President can do what he wants anyway, but we're going to play nice and get court approval for the law to make you happy -- but it's really so you can't argue it's illegal anymore, although, if the President wants to, he can reauthorize the secret program at any time without court approval."
The only legitimacy that argument has is this: it is legitimately crazy-making. In terms of argument, it is circular and absurd.
Of course, when it is laid out in plain language and in sequence, the absurdity becomes clear. But the absurdity is harder to discern when officials hang the argument on emotionally loaded terms like "national security" or "war on terror," or create bright-line assertions in their favor where the Constitution declines to (like by saying the President has the "inherent" authority to wiretap when such authority is nowhere set forth in the Constitution) , or set up false dilemmas, such as the supposed choice between the NSA program and federal law (e.g., the NSA program has the "speed and agility" needed, but federal law doesn't).
Here are the plain facts:
The program was first revealed in a New York Times article in December 2005, 2 although Bush soon admitted he had secretly and unilaterally authorized it, without court or congressional approval, shortly after 9/11. That is, Bush had secretly authorized the National Security Agency (NSA) to spy without a warrant on communications that admittedly involved American citizens.
On its face, this violates the Fourth Amendment right to be free of unreasonable searches and seizures -- which has for centuries required that law enforcement show probable cause of criminal activity in order to obtain a warrant.
According to former presidential advisor John Dean, when Bush admitted to having authorized the secret program, he became the first president to have admitted to an impeachable offense.3
On January 17, 2006, only weeks after the media revelations, the American Civil Liberties Union filed a lawsuit challenging the program. In August 2006, a federal district court ruled that the program indeed violated the First Amendment, the Fourth Amendment, and a federal law known as the Foreign Intelligence Surveillance Act, or FISA, which provides procedures and requirements for executive branch electronic surveillance collection. The Justice Department appealed to the Sixth Circuit Court of Appeals.4 (Arguments were heard in that court on January 31, 2007. The decision is pending.)
The Gonzales Letter
On January 17, 2007, a year to the day after the ACLU filed the lawsuit, Attorney General Alberto Gonzales announced in a letter to Senators Leahy and Specter that -- after five years of evading court approval -- "orders" for the program (called the Terrorist Surveillance Program, or TSP, by Gonzales) had been approved by a FISA Court judge and thus the President had determined not to reauthorize the program upon its expiration.5
This letter was issued less than two weeks before arguments were scheduled to be heard on the appeal of the case. Among other sneaky legal tactics -- including that the case cannot be heard because of "state secrets" and the plaintiffs cannot sue because they can't know whether they've been targeted or not, which, of course, they can't know because it's secret -- the Justice Department argued that the case was moot and should be dismissed since the NSA program, having been approved by the FISA Court, was now "legal."
In other words, Justice says that because a FISA Court judge approved orders under the program, even though Bush refuses to acknowledge any limitations on his authority to reauthorize it, nobody can challenge it.
One blogger on the ACLU blog noted: "The voluntary cessation of an illegal action does not dissolve its illegality."6
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