Saturday, January 7

Surveillance redux

Martin Garbus

An hour after the New York Times described Bush’s illegal surveillance program, I wrote on the Huffington Post that Bush had committed a crime, a “High Crime,” and should be impeached.

Was there then enough evidence to justify the beginning of an attempt to impeach the President?


Did the President have a good defense that he relied on Gonzalez, Ashcroft and the best lawyers in the country (in the Solicitor General’s and Department of Justice’s offices)?


Would any significant number of Americans of Congressmen then support such a process?


Given all that, would the turmoil and consequential turmoil have justified the start of that brutal process?


But that has all changed.

Because we shall soon see the consequences of those warrantless searches, the consequences of the government’s five years of secrecy, and even the citizens of the “Red States” will be outraged. Firstly, the warrantless taps will infect hundreds of “terrorist” and criminal cases throughout the country. Not only future cases, but past and present cases, even if there were convictions or plea bargains after the survellance started.

The defendants in “terrorist” and other infected criminal cases, the Court must find, must get access to everything, or very close to everything to make sure they were never improperly surveilled.

The Bush Administration, in these cases will refuse, as did the Nixon administration, to divulge information on national security grounds. Many alleged critical cases must then be dismissed. It will include Organized Crime and drug cases.

The entire criminal process will be brought to a standstill. Cases that should take six months to a year, will take three times as long, as motions go up and down the appellate ladder – as federal judges trial disagree with each other. Appellate Courts will disagree on issues so novel and so important that the Supreme Court will look at them.

Secondly, there will be an endless amounts of civil suits, that we can see will result in substantial damage awards. Commentators claimed there cannot be suits because no one has standing to challenge the surveillance. They are wrong. They do not remember the history of the Palmer Raids in the 1920’s, the surveillance in the Sixties and Seventies. The future will show both the enormous information the new technology has gathered but also the dishonest minimization of the extent of the surveillance.

That minimization is standard operating procedure for governments, whether they be run by Democrats or Republicans.

Thirdly, and most importantly, it is safe to preduct there will be coverups. This administration is not known for its candor.

The coverup starts by trying to get away with the vauge and meaningless defenses. Both Nixon and Clinton tried that.

When that doesn’t work, the coverup will be based on a foundation of small lies. Both Nixon and Clinton tried that.

We do not yet know what the FISA judges already fear – that they have been not just ignored by the executive but misused. The public shall also learn about the FISA judges’ misuse of the FISA courts and their warrants. The courts were created to permit eavesdropping and electronic surveillance, not physical break-ins.

But the facts will show that the Bush administration, with the knowledge, and at times, the consent of, the FISA judges, conducted illegal physical break-ins - break-ins that to this day, the involved person, is unaware of.

Were the results of these “terrorist” break-ins then given to criminal authorities to start unrelated prosecutions? Of course.

The American public will also learn what this Administration has thus far successfully hidden. When Bush came into office, he signed an Exeutive Order making all of his, and his father’s, papers privileged. The order, extending 12 years out, also says if the President is incapacitated, then a third person can execute the privilege. This means anybody – a wife, a family lawyer, a child. The order also says the Vice President’s papers are privileged. It is an extraordinary Executive Order – this has never been anything like this. No one ever suggested a Vice President has executive privilege. If we do not find out what they are hiding, we will see witholding on a scale never before seen. He will no longer be able to use 9/11 and the war on terror as an excuse. It will confirm the fact that illegality and secrecy existed long before 9/11, that it started as soon as Bush-Cheney-Rumsfield got into office. It will show deliberate attempts to avoid any judicial or legislative oversight of the illegal use of executive privilege.

Impeachment procedures will come not because of wrongdoing but because of the discovery of lies.

Both Nixon and Cliton faced impeachments because they lied.

It was inconceivable before the Nixon and Clinton impeachment procedures began that there could be, or would be a country or Senate that would be responsive to it.

In the Nixon case, it spiraled from a petty break-in – in Clinton’s case from a petty sexual act.

But what Bush has done, and will do, to protect himself is not petty. It goes to the heart of the government. He already has a history of misleading the public on the searches conducted thus far. As he and his colleagues seek to minimize the vast amount of data collection, the lies will necessarily expand to cover the wrongdoing. Bush can be brought down.