“I have here in my hand, a list ….” Senator Joseph McCarthy, Wheeling, West Virginia, February 9, 1946.
Senator McCarthy’s list turned out to be a mish-mash of changing numbers, names, and wild charges that paralyzed the government and brought chaos to normal political life. It was an “emergency” â€” the post-war world was one of atomic bombs, the Soviet Union, evil leaders, and spies. The senator had sympathy and support from a lot of newspapers and access to their often sloppy and prejudicial news files for anything embarrassing he could use. But at least he did not have the Internet. But McCarthy was a wild man looking for headlines and in time he disappeared in an alcoholic haze. He never unearthed anyone dangerous who was not already under surveillance.
Richard Nixon and his Watergate crew reflected the paranoid streak in their boss and looked for dirt on enemies, including raiding therapy files of Daniel Ellsberg.
We have been here before in American history.
In the past, creating massive and largely uninhibited intrusions into the private life of all its citizens, have brought self-defeating abuses and irrationalities. But the Bush Administration, at the height of its hubris, has acted as though it has no memory.
Within days, officials of the Bush Administration and the conservative courts reflecting their values have announced, for example, that it has techniques to comb the Internet using key words to compile lists of possible terrorists.
It has institutionalized secret detentions. The Department of Justice said it would not reveal the names on a list of 700 people being held in secret for alleged violations of immigration regulations because disclosing the names would aid “the enemy.”
And an appeals court said the new “USA Patriot Act” had “swept away” the distinction between names gathered in secret intelligence investigations and laws governing rights of people accused of crime.
The search will look at our telephone bills to see who called whom and what they talked about, our banking records, and travel documents â€” all without search warrants. It is almost a bad joke in a nightmareâ€” there will be the Pentagon Information Awareness Program. The office and its title seems like a parody of Orwell. Except it’s no joke.
To add insult to injury, the Director of the Pentagon’s Information Awareness Office is John M. Poindexter, a major player in the Iran-Contra’s scandal in which he was indicted and convicted of conspiracy, lying to Congress, defrauding the government, and destroying evidence. The convictions were later overturned because Congress had granted him immunity in exchange for his testimony.
Former protections against abuse and damaging mistakes are gone, unless there is the unlikely rejection of the United States Supreme Court. When the program objections reach the high court, only the government will be permitted to argue. Objectors like the American Civil Liberties Union, were not permitted to be parties to the suit, but allowed only the passive role of submitting amicus briefs stating their arguments. Given the past record of the Rehnquist majority, nobody is euphoric about the results. For example, the lists of people in prisons who might be prosecuted as criminals is secret with no disclosure of who they are and the nature of the offense that put them in prison.
There is a special administrative body that is entrusted to judge whether in precisely this kind of investigation and arrest in national security cases the government has “probable cause” for a criminal charge. It had been assumed up to now that the special court, Foreign Intelligence Surveillance Act Court (known in the trade by its acronym FISA) was the ultimate authoritative body sensitive to the need to protect the United States from secret agents bent on malicious action against this country but capable of passing judgment on the reasonableness of governmental acts and procedures. .
That special Court had placed certain minimal constitutional rules on the rights of government to make secret wiretaps and other surveillance. The chief justice of FISA said the restrictions had become necessary because Justice officials, as the New York Times reported it, “had frequently misled the court by claiming they were seeking wiretap authorization for intelligence gathering but had been deceptive in that they were trying to obtain wire tap for criminal investigation.” Put less diplomatically, that court said the Department of Justice officials had frequently lied to the court.
But that court can be over-ridden by a three-member super Court of Review (all appointed by Chief Justice William Rehnquist). In the first decision it has been called on to make since it was created, the higher court over-ruled the lower Court, freeing the Department of Justice to conduct more or less unrestricted Internet and other searches. And, if the original FISA court were correct, also free to lie if convenient.
Thus, a special “Court of Review” could negate decisions designed to prevent abuse of secret surveillance.
The super Court of Review brings thoughts of the Iranian super religious courts that assume the power to stop pro-democratic decisions by that country’s Prime Minister and the Parliament.
We have had experience with the mischief and damage secret lists can create. It goes back to the administration of John Adams and the Alien and Sedition Acts of 1798. American politicians friendly toward France were considered dangerous. Adams’s 1798 Act made it a crime for a newspaper to criticize the government. It was a political move in an attempt to destroy Thomas Jefferson. It completely ignored the First Amendment and a newspaper editor was actually imprisoned.
More recently, during the Cold War McCarthy hysteria, the Department of Justice had its list of “subversives.” How one got on the “The Attorney General’s List” was a mysterious process, but people lost their jobs, were called to executive and then open sessions of a Senate Committee and commanded to list their friends and associates. Right-wing sympathizers compiled their own lists of what they considered excessively liberal entertainers, writers, journalists, and others, many of whom also lost their jobs or worse.
(To add a personal note, some time ago I asked, under the Freedom of Information Act, for my FBI and CIA records. Along with long blacked-out sections, there were an appalling number of gross errors and reports from what apparently were dinner party conversations in which my statements were the direct opposite of what I actually said. Given the present atmosphere, if that is repeated, we are all in trouble, including if you praise John Poindexter to the skies at a dinner party or phone conversation.)
Now with the USA Patriot Act and Justice Rehnquist’s appointees on the Court of Review, we are on a course in which government officials and criminal investigators of persons suspecting of malice toward the United States can sweep away constitutional provisions we thought would prevent abuse. It will be aided by the Internet, which did not exist during the hysteria and abuse by John Adams and Joe McCarthy. It is also aided by the appalling performance of Democratic Party leaders.
John Adams ignored the First Amendment under the rubric of “emergency.” President Bush in ordering intrusion into personal computers, phone conversations, easy wiretapping, and private records has ignored the Fourth Amendment to the Constitution:
“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.”
Few people would argue that the acts of September 11 and other violent destruction of life and property are not real, or that there are secret organizations bent on doing the United States harm.
That danger is real. But the rush to sweep away constitutional other protective provisions not only inflicts long-lasting wounds to the Constitution. It also ignores past history that shows that those constitutional provisions have been important in bringing careful and discerning investigations, rather than uncontrolled and indiscriminate imperious intrusions that have always encouraged abuse and unprofessional behavior. There is a long history, here and abroad, of the injustices and self-defeating clutter produced by uncontrolled policing.
Sweeping away proven sensible procedures creates hysteria and chaos. There are individuals and groups those whose malice toward the United States is not only zealous and determined, but backed by high intelligence and low morality. They know how to play a system â€” false alarms mixed with real plans to overload local and national protective agencies, straw men as sacrificial goats to confuse the search system, planted lies about loyal Americans.
A security system that is sweeping and uninhibited and virtually unaccountable does not make us safer but can be a danger to genuine national security. It is the way certain viral infections cause the human body’s immune system to attack itself.
Ben H. Bagdikian is a writer, author of The Media Monopoly and other works, including a study of the 1947 Truman loyalty-security program of government employees.