May 5, 2006
Volume 34
Issue 18
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Friday, Nov 27, 2020



Abuse of power must be challenged
Abuse of power must be challenged
by Kathleen Taylor - Executive Director - ACLU of Washington

Americans believe in democracy, in respecting the rule of law, and in the system of checks and balances between the executive, judicial, and legislative branches. These core principles have united us and helped preserve our nation despite wars, depressions, and natural disasters. They have made us a beacon of freedom among nations.

But the actions of our president, and the potential acquiescence of Congress, threaten these essential democratic principles. In violation of the Constitution and federal law, President Bush authorized the National Security Agency (NSA) to conduct illegal surveillance activities within the United States. As far as we know, the NSA has monitored the communications of anywhere from a few hundred to a few thousand U.S. citizens who have been contacted by people abroad.

The law that governs surveillance, the Foreign Intelligence Surveillance Act (FISA), is already extremely flexible and responsive to rapidly changing threats. For example, it even gives the NSA authority to wiretap without a court order so long as a FISA judge is notified within 72 hours.

The FISA court already is virtually a rubber stamp. In 2004, it did not deny any of the 1,758 requests to conduct secret surveillance or physical searches. But that wasn't easy enough for President Bush. No FISA judge was notified. No warrants were issued. Rather than raise concerns with FISA and ask Congress to amend any supposed shortcomings, President Bush simply ignored it. When the illegal program was revealed in media reports, the White House took a firm position against any judicial or congressional oversight. In short, President Bush told Congress that he was not beholden to them or the law. Sadly, many in Congress seem willing to go along.

The NSA wiretaps are part of a disturbing pattern by the Bush administration of engaging in conduct that exceeds its authority. The administration has circumvented the Geneva Conventions when it deals with prisoners of war. It has detained American citizens indefinitely without charges. It has stated that it can choose to ignore the anti-torture legislation recently passed by Congress.

The Bush administration's policies have also ensnared Americans exercising their rights to free speech and dissent. When the ACLU filed a Freedom of Information Act request, we found that the FBI and local police have infiltrated political, environmental, anti-war, and faith-based groups. In Georgia, the FBI and local Homeland Security officials spied on vegans picketing against a meat store in DeKalb County. In California, college students in Santa Cruz who protested the appearance of military recruiters on campus found their protest listed as a "credible threat" on a Pentagon surveillance program database.

Here in Washington, the ACLU helped peace activist Glen Milner obtain surveillance records held by the FBI. The files reveal that federal agents had spied on a variety of peace groups, including the Raging Grannies, a group of senior citizens who sing out their political views.

Some have called on Congress to further loosen the FISA law to make Bush's NSA spying program legal, allowing the government to conduct surveillance without a warrant or any judicial oversight. To change the law now, after it has been flagrantly violated, would be a grave mistake. It would excuse the president for breaking the law in the first place. Furthermore, it would send a message that Congress is not willing to stand up to an abuse of presidential power and a violation of the Constitutional system of checks and balances.

Americans increasingly are raising concerns. A recent poll found 54 percent of Americans oppose the warrantless surveillance program. Sixty percent of respondents believe the president should work with Congress and the courts, within the time-honored system of checks and balances established in the Constitution, to combat terrorism.

This is not a partisan issue. At least a third of Republican voters polled were concerned that President Bush is operating outside of the law. Meanwhile, some senior Republicans in Congress are demanding more information and oversight.

In our country, government power has its limits. Nobody is above the law, not even the president. Our system of checks and balances must be maintained, especially in a time of war. After all, how can America fight for democracy in Iraq and Afghanistan when we allow the president to break the law here at home?

Taylor is the executive director of the American Civil Liberties Union of Washington. A version of this op-ed previously appeared in the Seattle Times.

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