Why Not Get Warrants? 

It's the most important question in the president's domestic spying scandal.

Since the revelation that President Bush ordered illegal domestic surveillance operations, we have seen how the Republican spin machine has mastered the art of turning any and all controversies into questions of national security. You know the drill: Those who are criticizing Bush's orders are billed as weak, soft on national security, or against domestic efforts to stop terrorism.

Meanwhile, Bush is portrayed as the tough fighter of terrorism, willing to make the tough choices to defend America's national security. In short, his crimes are portrayed as badges of honor.

There's just one problem: This isn't a question of whether America supports domestic surveillance operations against terrorists or not. This is a question of whether America supports those operations without requiring a warrant.

Domestic surveillance operations happen all the time. They are a regular topic of television shows and movies (think Serpico or Stakeout). But they are also governed by the Fourth Amendment, which explicitly protects citizens against "unreasonable search and seizures" and requires the executive branch to obtain a warrant from the judiciary branch in order to do surveillance operations.

So the question reporters should be asking the White House isn't why the president thinks there should be domestic efforts to track and stop terrorists. The vast majority of Americans support such efforts. The question they should be asking is, Why did the president order domestic surveillance operations without obtaining constitutionally required warrants? That is behavior that most Americans who believe in the Constitution likely do not support at all.

This is especially important, because under the Patriot Act's weakened standards, the government can now circumvent the traditional (and more rigorous) judicial system and obtain a warrant directly from a Foreign Intelligence Surveillance Act (FISA) court, which is almost completely skewed in favor of the government. As Slate correctly noted, getting a warrant from a FISA court judge requires "no need for evidence or probable cause," and the judge has almost no authority to reject the government's request for a warrant unless the government's requests are extraordinarily outlandish. The government's own data shows that the FISA court has rejected only four government applications for warrants in the past 25 years. It is also why members of Congress of both parties have tried to repeal the Patriot Act sections that allow the administration to use FISA warrants for domestic surveillance.

The president repeatedly says he needed to order these operations to protect Americans. Fine -- but it still doesn't answer the real question: If the surveillance operations he ordered were so crucial and so important to protecting our country, how come he didn't get a warrant? Surely something so critical to our security would have easily elicited a warrant from a FISA court already inclined to issue warrants in the first place, right?

The answer is obvious, though as yet largely unstated in the mainstream media: because the president was likely ordering surveillance operations that were so outrageous, so unrelated to the war on terror, and, to put it in constitutional terms, so "unreasonable" that even a FISA court would not have granted them.

This is no conspiracy theory. All the signs point right to this conclusion. In fact, it would be a conspiracy theory to say otherwise, because it would be ignoring the hard facts that we already know.

Two years ago, The New York Times reported that the administration is using the FBI to "collect extensive information on the tactics, training, and organization of antiwar demonstrators." Then, just a few months ago, the Times reported that the FBI "has collected at least 3,500 pages of internal documents in the last several years on a handful of civil rights and antiwar protest groups." And just last week, NBC News obtained a 400-page Pentagon document outlining the Bush administration's surveillance of antiwar peace groups. The report noted that the administration had monitored 1,500 different events (aka. antiwar protests) in just a 10-month period.

These are exactly the kind of surveillance operations even a government-tilted FISA court would reject, and it raises yet more questions: Are these antiwar groups the targets of Bush's warrantless, illegal surveillance operations? Who else has the president been targeting? Has it been his partisan political enemies a la Richard Nixon? Or has he been invading the privacy of unsuspecting citizens in broad sweeps with no probable cause at all?

The answers to these questions will get us away from the silly and partisan "strong on national security" vs. "weak on national security" diversion. This controversy has to do with whether America believes in the Constitution's separation of powers between the executive and judicial branch -- the separation that quite literally differentiates our form of government from a dictatorship, where when the monarch snaps his fingers, the secret police immediately target unsuspecting citizens. That's about as un-American as you get. And it's why we need to know whether those who hold the highest offices in this country think they can turn our democracy into their autocracy.

David Sirota is the author of the forthcoming book Hostile Takeover, which explores how big money has taken over America's political process. He is the co-chair of the Progressive Legislative Action Network, an advocacy organization that supports state lawmakers. You can find his writing at workingforchange.com.



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