Post-Gazette Editorial – 5/13/06

This page was last updated on May 14, 2006.

Spying on our own / Congress needs to stop Bush on phone surveillance; Editorial; Pittsburgh Post-Gazette; May 13, 2006.

The primary purpose of this critique is to demonstrate the colossal ignorance displayed by the subject editorial.

Below is a detailed critique of the subject editorial.

“The latest revelation on the electronic surveillance the Bush administration is carrying out against Americans at home is that three of the major phone companies have provided the National Security Agency with records of millions of calls made by customers in the United States.”

[RWC] Many reports don’t describe the phone records in question. As reported so far, the records list only calling and called numbers, date/time of each call, call length, and the community names of the calling and called phone numbers. It’s pretty much what you see on your cell or long distance phone bills. No names or addresses are included.

As with the terrorist surveillance program, a small number of members of Congress – both Democrat and Republican – were briefed about this collection of phone records from the beginning. I wonder why the editorial failed to mention this fact.

“In the name of searching for al-Qaida operatives after 9/11, the NSA demanded and has been receiving domestic phone records from Verizon, AT&T and BellSouth, according to a story first reported Thursday by USA Today. All of this has occurred without the use of court orders from the Foreign Intelligence Surveillance Act court or any other judicial authority.”

[RWC] “First reported Thursday by USA Today?” Contrary to what the P-G (and USA Today) would like us to believe, The New York Times reported this story back in December 2005 at about the same time it disclosed the terrorist surveillance program. Indeed, the P-G itself carried the story on December 24, 2005. Do editorial writers read the “news” pages?

According to The New York Sun, at least part of the authority to acquire the phone records came from the Communications Assistance for Law Enforcement Act of 1994. This act was passed by a voice vote by a Democrat-majority House and a Democrat-majority Senate and was then signed by Democrat President Bill Clinton. Remember this when Democrats in Congress run around expressing surprise.

“The only company with the guts to question the legality of the administration’s action was Qwest, which declined to provide its records. The other three cravenly handed over what the NSA asked for, in spite of regular assurances to clients of dedication to protection of their privacy.”

[RWC] Hmm, I guess editorial writers really don’t read the “news” pages, or ignore them when their contents are inconvenient. In January, the P‑G ran at least two stories about the ability of ordinary people to purchase phone records on the Internet.

In January, PC Magazine columnist John Dvorak purchased three days worth of phone records for Gen. Wesley Clark (ret.), former Supreme Allied Commander of NATO.

Let’s look at “cravenly handed over what the NSA asked for.” First, though I’m certainly not a lawyer, it appears the request was lawful and the Communications Assistance for Law Enforcement Act of 1994 required phone company compliance. Second, what is “craven” about supplying data that may help thwart terrorist attacks? Finally, when did ordinary business records achieve the status of client/lawyer or doctor/patient confidentiality?

Based on the reactions of many liberals, it is the responsibility of everyone to do what they can to throw up roadblocks in our war with terrorists.

“Pennsylvania’s Sen. Arlen Specter, chairman of the Judiciary Committee, intends to cast light on this affair by summoning the heads of the companies before his panel.”

[RWC] Does anyone care to guess which way Mr. Specter voted on the Communications Assistance for Law Enforcement Act of 1994? Of course, we’ll never know for sure because our stand-up legislators did a voice vote, not a roll call vote.

“The matter is likely to have fallout at the hearings May 18 before the Senate Intelligence Committee of Gen. Michael V. Hayden, former head of the NSA, nominated by President Bush to be director of the Central Intelligence Agency. The fact that Gen. Hayden presided for years, presumably without question, over this mass surveillance and accumulation of data on the phone calls of millions of Americans, without court sanction, calls into question the wisdom of making him head of the CIA.”

[RWC] Note how the editorial conflates “surveillance” with “accumulation of data.” The author wants us to believe the records contain conversation content.

I hate to break it to the P-G, but most government actions don’t require “court sanction.” If all government actions required court sanction, the executive and legislative branches would be subordinate to the judicial branch. That’s not how our government is designed.

“Absent evidence to the contrary, Gen. Hayden is not someone with sufficient respect for the civil rights of Americans to be put into a position of such responsibility, given the role of the CIA in intelligence gathering at home and abroad. The CIA is forbidden to collect intelligence on American citizens; the NSA is forbidden by FISA to bug the phones and e-mail of American citizens without a court order. The NSA, under Gen. Hayden’s leadership, ignored this requirement.”

[RWC] First, FISA doesn’t do what the editorial claims and several former FISA judges – among other legal experts – agree. Second, many legal experts assert the Constitution gives the president sufficient authority to carry out the terrorist surveillance program. If so, FISA – or any ordinary law – can’t revoke a power granted by the Constitution. Power granted by the Constitution can be revoked only via an amendment.

“The administration underlined its disregard for logic and justice inherent in its approach to surveillance when the Justice Department informed a member of Congress on Wednesday that it had been forced to close an investigation into the conduct of government lawyers who approved the NSA’s domestic surveillance program. The reason was the NSA had refused to give investigators the security clearance they needed for access to the necessary information.”

[RWC] What “domestic surveillance program?” As I’ve noted before, it’s not “domestic” surveillance when at least one party is outside the U.S. I’ll repeat an example I’ve used before. Is a plane flight from Pittsburgh to London a domestic flight or an international flight?

“That is to say, an office of the U.S. Department of Justice was refused clearance by the U.S. National Security Agency to examine the activities of Justice lawyers ruling on the legality of NSA actions.

“Basically, in the face of an assault on Americans’ rights to privacy by the Bush administration, rights based in the U.S. Constitution’s Bill of Rights, the courts have been pushed out of the way. Mr. Bush ignored the requirement to obtain FISA court orders before bugging American citizens. Now the NSA feels free to ignore federal government procedures for the Justice Department to look into the legality of its actions.”

[RWC] “The courts have been pushed out of the way?” Most people know the Department of Justice is part of the executive branch, not “the courts.”

“We count on Sen. Specter and other members of Congress to pursue this issue with courage. They could start by questioning Gen. Hayden rigorously and then, absent evidence that he does not share the administration’s disposition to ignore Americans’ rights, turn him down for the CIA post.

“That would be a good start at rolling back this assault on Americans’ rights.”

[RWC] Here’s what the editorial fails to note. No one remotely considered being in the mainstream of American thinking supports stopping either the terrorist surveillance program or the collection of phone records. Indeed, even those who asserted the programs were illegal were tripping over themselves to introduce legislation to make the programs legal. In a recent poll, 63% of Americans supported these programs.

Here’s the bottom line. The attacks on these programs are motivated purely by politics. If President Bush were a Democrat, outlets like the P‑G would be publishing editorials telling us what a wonderful job President Bush was doing to root out terrorists and their collaborators.

While we’re talking about an “assault on Americans’ rights,” does anyone care to guess what the P‑G position is regarding smoking on private property? I didn’t find any recent editorials on the topic, but an editorial from November 2002 was definitely on the side of infringing on rights.

Does anyone care to guess where the P‑G fell on infringing on free speech (guaranteed in the First Amendment) when it came to politics? An editorial from April 2001 put the P‑G squarely in the camp advocating limits on free speech.

The next time a P‑G editorial frets about an “assault on Americans’ rights” just remember it’s more likely an issue of partisan politics. As I showed above, P‑G editorials don’t have a pristine history when it comes to defending rights.