You may think that the recent revelations about domestic spying by the Bush Administration have little to do with equal rights for gays, or for that matter, with the lawful behaviors of most American citizens.
You would be wrong.
Put aside the fact that gay rights groups in some parts of the country have been targeted for “monitoring” (along with Quakers, animal rights activists and other suspicious types) as presumed “terrorist threats.” Put aside the personalities and policy preferences of this particular White House. The Administration’s effort to exert and vastly expand unchecked executive power would be both dangerous and un-American no matter who was in office and no matter what the agenda.
Let’s review what we know: the Administration has been “mining” enormous amounts of data, obtained by “monitoring” (i.e. listening and reading) vast numbers of telephone calls and emails, without going to the trouble of obtaining a warrant. As a former lawyer for the CIA put it in a recent op-ed in the Washington Post, “it is clear that the courts did not have any role in reviewing this assertion of executive authority…[instead] an NSA shift supervisor was able to sign off on the warrantless surveillance of Americans. That’s neither a check nor a balance.”
When speed and secrecy are concerns, government officials needing authorization for domestic spying can go to the special Foreign Intelligence Surveillance Act (FISA) court set up by Congress in 1978 for just this purpose. That court can approve eavesdropping in hours, even minutes, if necessary. In fact, the law specifically allows the government to eavesdrop on its own in a pinch, and justify its action to the court retroactively. The FISA court has certainly not been picky; since 1979, out of tens of thousands of requests, it has denied exactly four. Congress’ purpose in establishing this semi-secret court was to ensure that federal power would not be misused, that it would not be deployed against political enemies or dissenters who simply disagreed with government policies. (Think Richard Nixon, or J. Edgar Hoover’s surveillance of “domestic enemies” like Martin Luther King.)
The Administration argues that it should not have to incur the “burdensome” task of complying with the Fourth Amendment. Indeed, the administration has complained bitterly that even the FISA process demands too much: that it describe a target (the name is not required) and give a reason to spy on it. As one government official recently put it, “For FISA, they had to put down a written justification for the wiretap. They couldn’t dream one up.” (“Because I say so, that’s why” doesn’t constitute a justification.)
As we all learned in high school government class, our entire constitutional system is built on checks and balances. The founders had very good reasons for establishing a system that did not require citizens to simply trust that unlimited power would be exercised responsibly, and those reasons are—if anything—more compelling today. The issue is not whether we agree with any particular decision made, or action taken; the issue is whether the decision or action was legitimate, whether the applicable rules were followed. If the President is above the law, if—as Bush asserts—he has “inherent power” to do anything he and he alone decides is “necessary,” there is no law.
Let’s put this in less abstract terms. As Larry Johnson has recently written, under the logic of the Administration’s argument, if the President were to decide that pedophilia is necessary to save the nation, he would have “inherent authority” to engage in it. If you think that is absurd, it is; but just try to explain how it is logically different—and why.
Bush’s assertion that he has the power to do whatever he wants, whether there are existing laws against it or not, without the interference of those pesky courts and/or Congress, is no different from the arbitrary actions of innumerable law enforcement officers who decided before Lawrence v. Texas to enforce anti-sodomy laws against some people but not against others, or the decisions of southern sheriffs to turn a blind eye to evidence that “Bubba” was involved in that lynching down the road. As they used to say in the old Westerns, “I’m the law in these parts, fella.”
In a country without respect for individual rights and the rule of law, marginalized groups are always the first to suffer. But they aren’t the last.