America's Lawless Executive Branch

America's Lawless Executive Branch
by Andre Zantonavitch

Benjamin Franklin once said: "Those who would give up an essential liberty for temporary security deserve neither liberty nor security." In the current bank transactions spying controversy, perhaps George Bush should consider whether or no he really thinks he's wiser than Benjamin Franklin.

These are scary times for freedom of speech and civil liberties. Many conservatives -- almost including George Bush -- are brazenly demanding that the New York Times, Washington Post, and Los Angeles Times be charged with treason. This outrageous call seems to be a trial balloon for significantly less freedom in America down the road. But just how much censorship and fascism is actually desirable?

This whole firestorm is a blatant act of government intimidation -- of investigative journalists and everyone. Clearly the current American government does not want a free people and a free press snooping into its snooping. The word is out: If the executive branch of the federal government is shamelessly traducing the law and the constitution, well, too bad. Nobody better breath a word about it. And now maybe Uncle Sam will use some of its new spying powers -- those which are refreshingly free from Fourth Amendment judges' warrants -- to protect some of its other new spying powers, in a marvelously self-perpetuating circle.

The feds already claim the right to troll into, fish through, and data-mine our search engine requests, phone records, international phone calls, and now bank transactions. And this is just the criminality we know about! Maybe some powerful federal agents will soon use the information compiled from these fascist databases to silence "uncooperative" and "treasonous" journalists -- assuming they aren't doing so already.

If you want to talk about "treason," however, this is pretty much what Bush, Cheney, Rumsfeld, and Hayden are doing already. They now routinely violate state and federal law, while trashing the constitutional requirements of the First, Fourth, and Nineth Amendments, while running rough-shod over the "due process," "institute justice," and "secure the blessings of liberty" clauses. Talk about treason! In the end, it's hard to believe these guys can't even be bothered with using the lap-dog FISA courts for all their diverse snooping activities.

Real treason also consists of Bush and company maintaining an alliance with our enemies Saudi Arabia and Pakistan. It includes forming an alliance with our future enemies Kazikhstan, Uzbekistan, Turkmenistan, and many others. Long after Bush thankfully departs, these three and many similars will likely threaten or attack us. It's just like when the US abandoned principle and morality to heavily aid Saddam, Osama, the Taliban, and Al Qaeda.

Real treason by the Bush Administration also consists of letting Iraq and Afghanistan set up "soft" socialist and "soft" sharia states which really aren't all that soft. These countries are almost certain to become communist-type, Islamicist-type, anti-American dictatorships several years down the line -- assuming they're not that now.

Real treason also consists of not bombing Iran and Syria as they openly and massively aid the Iraqi insurgency. And it consists of continuing to criminalize the opium fields of Afghanistan, which evidently provides up to five billion (yes, billion) dollars a year directly to Al Qaeda. And what of gutting the American libertarian tradition, and causing good people worldwide to lose heart, while motivating the bad people of the planet to fight ten times as hard for ten times as long? How is all of this not treason?

One way you can tell Bush is wrong about all these recent machinations is by his uncharacteristic snarling. Another way is by looking at the situation from the other side of the Jihadi War: just observe his flagrant, consistent, illegal, unconstitutional detention without trial and torture of Muslims. Still another way you can tell Bush is wrong is, well, he's always wrong. From deficit spending, to prescription drugs, to farm subsidies, to manufacturing quotas, to oil company favoritism, to (ironically) oil drilling restrictions, to attacking abortion and gays, to secrecy on everything -- Bush has acted against freedom virtually the totality of his presidency.

Other indications of the criminality of this most recently revealed policy can be seen in the quick and sneaky way the Bush Administration suddenly decided to consult with Congress. When it became clear a few weeks ago that the cat was out of the bag, Bush immediately informed far more Congressmen in far more detail about this latest escapade in spying on American citizens. His cover-your-ass scrambling isn't exactly the behavior or someone who's innocent, or confident he's morally in the right.

Another indication that this bank snooping program is illegal is the fact that in 2003 the SWIFT officials tried hard to back out of it for fear of being sued by customers and governments for a whole slew of reasons. This is now happening. SWIFT only agreed to continue the warrantless spying in 2003 after many extraordinary meetings and heavy-handed US pressure. And even then only in a very restricted form, and with considerable new privacy safeguards.

Philosophically, the current government mania for secrecy is both ominous and foolish. Secrecy simply isn't the libertarian or American way. The fundamental reality here is that although government secrecy is valuable in strictly military matters, it has little or no value in civilian affairs. In private life, it's openness that adds strength to liberal states. And all of the above controversial "search and seizure" programs are civilian and private matters.

It's worth noting that America doesn't have anything like the Official Secrets Act of Britain (passed 1911, updated 1989). Maybe every other nation on earth does have something similar -- but not America. She doesn't want or need any such law. It would be straight-up censorship and tyranny.

A truly free society takes the four issues above (internet searches, phone records, international phone calls, and bank transactions) and debates them openly, so that the public and pundits can weigh in, and so that the legislature can formally decide. Turning the president into a dictator, and letting him privately decide and then operate in secrecy throughout, is not proper to a liberal state. Rather, this is the invariable methodology of, and path to, totalitarianism.

The great scam logic curently being used to justify these four acts of blatant criminality -- plus probably another half-dozen programs we don't know about -- is this: "Well, are you saying you want these [illegal spying] programs cancelled?!" The Bush supporters ask this with menace and borderline hysteria. They add: "Not one Democrat has come out and said publically he wants these effective and invaluable programs cancelled!"

But this is a false dichotomy. The neo-cons and neo-nazis can very possibly keep all their beloved Big Brother spy programs. They just need to make them lawful. They just need to have them openly and publically vetted, and then get a formal law passed. This is what a free nation does if it wants to be ruled, not by men, but by law. How hard, mysterious, and inexplicable can this be?

One of America's great strengths -- which Osama can't threaten, but Bush can -- is its tripartite government of "checks and balances." Power to rule is divided between executive, legislative, and judicial. When it comes to the current unprecedented spying on Americans, the legislature needs to have oversight -- just as the Supreme Court recently ruled Congress does on the "illegal combatants" issue. And this oversight has to be more than just tiny misleading snippets which the executive grudgingly dispenses at its whim to a small select number. The judiciary also has a role to play -- just as it does with "unlawful combatants." American government does not merely consist of an elected four-year dictator.

If there's one lesson to be learned in this whole ominous, overstepping, usurping, "imperial presidency" mess it's this: Get a warrant! If Bush is so right about all these spying-on-Americans programs being legal, moral, and important, then getting a judge to agree with him should be easy. The 1978 FISA court, which was set up for just this purpose, already agrees to more than 99.9% of all post-9/11 requests for searches. And it's easy enough to fix this, via proper legislation, if the special court somehow isn't working entirely properly in our current Jihadi War.

In this whole Big Brother imbroglio, it's important for George Bush to at least pretend he cares about individual liberty and privacy rights. He needs to at least pretend he cares about the law and the constitution. It's bad enough that he's completely bungling the "war on terror" otherwise. It's bad enough that he can't even name the war right as he brazenly kisses up to, and cuddles with, most of our Muslim enemies.

Few aspects of this almost unrestrained "search and seizure" assault on American citizens are as terrifying as this new spy tool known as "administrative subpoena" AKA a "national security letter." This previously unknown government power sounds amazingly like a dictator's secret decree. At the very least it's reminiscent of an omnivorous "general warrant" for seizure and arrest -- something the Founding Fathers loathed. And none of this sounds like a real subpoena or a real warrant.

As the senior official in the original June 23rd New York Times article put it: "The [government] capacity here is awesome or, depending on where you're sitting, troubling." He added "the potential for abuse is enormous." According to Richard Fischer, a banking privacy expert, this program does an "end run" around the law. "There has to be due process. At an absolute minimum, it [the SWIFT program] strikes me as inappropriate."

But arguably the most terrifying aspect of this whole unrestrained violation of law and constitution activity comes from the Bush Administration officials themselves. Treasury Secretary Stuart Levey dares to call this openly unconstitutional criminality a "legal and proper use of our authorities." Treasury Secretary John Snow claims this ghastly evil "is consistent with our democratic values and legal traditions." He seems to happily spit in our faces as he labels this clear illegality and Big Brother outrage as "government at its best."

But let's suppose for a moment that the Bush Administration and all its conservative fascist allies are right about the benefit and propriety of all these government programs with all their secret warrantless spying. Fine, but now that they've been publically exposed -- and the value of secrecy forever lost -- let's at long last debate their merits. Even exposed, there's probably a considerable value left in them -- if only as deterrents. Let's pass official legislation and make it all proper and legal, finally. Let's let Congress have oversight, and let's let the judiciary review it all. This is the way America usually does it, and this is the way the constitutional framers certainly wanted it.

Above all else, let's use proper and legal subpoenas and warrants. And let's not jail journalists who actually care about freedom, civil liberties, privacy rights, the law, the constitution, and the United States of America -- a usually great non-fascist state.

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