The 300+ seats were filled to capacity last night for an ACLU
emergency meeting on wiretapping, held in Lexington, Massachusetts. It
has been years since an event made me so angry–and even longer since
an event made me so inspired.
The moderator was Congressman Ed Markey, and the two speakers were
Marc Rotenberg, Executive Director of the Electronic Privacy
Information Center, and Carol Rose, Executive Director of the American
Civil Liberties Union of Massachusetts (ACLU-MA). All of them were
extraordinarily eloquent and to the point, having learned over the
years how to explain complex legal and technical points in precise and
As far as I know, this is the first open meeting concerning the
scandal that’s rocking the country. There were many local touches,
such as being called a “Town Meeting” in an old New England tradition,
and some corny references to Lexington as the cradle of American
democracy. But Markey promised that many more such meetings will take
place around the country.
The panelists included no one from the other side–no proponents of
unmonitored wiretapping–but since George W. Bush has said that
discussing the issue is “shameful” and aids the enemy, they presumably
had nothing to say anyway. Not only were these forces absent from the
stage, they were also completely absent from the audience, judging
from the comments, applause, and the unanimously negative response
when Markey asked whether the person who revealed the wiretapping was
But never fear–the statements and justifications of the
administration were amply represented during the presentation.
I assume readers of this blog are well-educated on the issues, or can
retrieve the main background from other news sources, so I’ll just
list some of the less well-known aspects that came up.
The key demands that the public needs to make now are for
Congressional hearings to uncover what the NSA is doing and what the
administration told it to do, plus an independent special prosecutor
with subpoena powers to launch an investigation.
Rotenberg pointed out that we’re at an amazing historical confluence:
the greatest Constitutional crisis since Watergate in the form of this
wiretapping scandal, a debate about elements of the Patriot Act in
Congress, and upcoming hearings for a Supreme Court candidate whose
record suggests he doesn’t believe in the key doctrine at stake in
this issue–judicial oversight of the executive branch, particularly
in the area of civil liberties.
(Personal comment: I’ve worked with Rotenberg’s group,
for years, and I’ve found they have an amazing reach and depth. As a
separate plug, I’d like to note they were an outgrowth of an
organization I’m a member of,
Computer Professionals for Social Responsibility.)
Markey pointed to a strong libertarian strain among Republicans that
makes many Congressmen and Senators as disgusted as last night’s
audience is by Bush’s bypassing of oversight in wiretapping. Markey,
speaking for Congress, said “The President is going to be on the run
from the moment we get back to Washington,” drawing applause so
protracted that I wasn’t sure it would ever stop.
Strong applause also greeted a call for impeachment from the audience,
but Markey pointed out that the whole point of our protest is to
uphold the notion of a meaningful process, and that our process in
this case must start with investigations to establish the facts.
Markey also reminded us that a Congressional election is coming up in
ten months, and said that electing more Democrats would put even more
pressure on Bush and lead to hearings that determine the
truth. (Personal comment: I can’t say I have Markey’s confidence in
the Democratic party as a whole, as much as I admire his own record.)
It was repeatedly pointed out that the court Bush was
bypassing–Foreign Intelligence Surveillance Act (FISA)–is a
rubber-stamp court, turning down only 4 of the 19,000 wiretaps that
law enforcement has asked for since its founding in the 1978 law. They
act in total secrecy and hear arguments only from those requesting
wiretaps, not from any opponents. Law enforcement can even do wiretaps
first and ask permission later, if they feel it necessary. So why did
the administration feel it had to bypass even this fully captured
Well, the FISA judges did occasionally question or call for changes in
wiretap requests. But the key problem was that the kind of wiretapping
the NSA is doing is so broad that it can’t even be represented as a
request for wiretapping. The NSA can’t say who they’re spying on or
why. They’re doing massive data mining–just opening up a funnel take
in everything they can and using heuristics to look for suspicious
(Personal comment: Anyone with an interest in the subject has known
for eight years that this spying is going on. The project was called
Echelon and was first revealed by minor journalistic outfits in
1998. It was credited a couple years ago in the capture of an Al Qaida
operative in Afghanistan. So it’s a bit disingenuous for people in
positions of power to express shock over the New York Times
revelations, just as it is disingenuous to suggest that recent
revelations of torture under U.S. auspices are, well, revelatory.)
Speaking of revelations, the administration is taking intimidation to
a new level by claiming they want to criminally prosecute not only the
person who leaked the information about the NSA, but the journalists.
This has no precedent since threats from Richard Nixon during
Watergate. And it seems a lousy payback (my personal comment) for the
New York Times, which did Bush about the biggest favor any publication
ever performed for him by suppressing news of the NSA wiretaps prior
to the 2004 election. Rose said we should back the New York Times in
defense of independent media, while expressing to them our outrage
that they sat on this news of such public importance.
Rose pointed out that in Massachusetts we seem to have our own
mini-echelon. Governor Romney has set up something he calls a “fusion
center” that combines information from law enforcement and various
other sources of differing accuracy. No one knows exactly what it’s
supposed to do–the ACLU is trying to find out–but the mission seems
similar to the NSA stuff.
Rose raised the most philosophically significant question of the
evening (aside from Constitutional issues) when she pointed out that
the public has to discuss and understand the meaning of the vast
data-capturing and data-mining technology the NSA has apparently
developed. The technology clearly breaks all the assumptions that led
to our historic laws on wiretapping–so what should we do now? The key
point, so far as Bush’s behavior goes, is that any changes to current
practice have to be made by Congress. His administration decided they
couldn’t get Congress to approve blanket wiretapping, so they did it
in secret instead.
I have stressed the rhetorical and spectacular aspects of the
presentation, but much of the evening was devoted to a detailed and
cautious examination of eight claims by Bush and his supporters
(called “myths” by Markey) and the actual facts and legal precedents.
For instance, whereas Bush claims he is legally allowed to violate the
law, Rose and Rotenberg pointed to Supreme Court precedents and the
history of legislative bills going back decades, to show that the
Court and Congress both explicitly set limits to what Bush can do.
The limited information we have about the current NSA scandal, as I’ve
said, shows it’s a huge funnel. And the ACLU has a huge stack of
records documenting more conventional wiretaps on churches, anti-war
groups, environmental groups, and so on. All this gives lie to another
bush myth that the wiretaps target only terrorists–known “bad
What about the administration’s claim that they submitted their
law-breaking initiative to Congressional oversight? The facts around
this claim are very revealing.
What the administration did was lift the veil to a few senior members
of the House Intelligence Committee and to two FISA judges–but left
the information so classified that these leaders couldn’t even discuss
it legally with their own counsels. Some of the Congressmen expressed
opposition to the administration, but they couldn’t take it anywhere.
(Personal comment: this tactic of shredding the law’s oversight
provisions is typical of the conduct of Republican leaders for over a
decade. They preserve the flimsiest, superficial elements of laws and
procedural standards in order to undermine the law’s intent.)
But as I said, tonight’s meeting was inspirational. That’s because the
speakers (who know how to draw together and move an audience) left us
feeling that the tide is turning.
I believe that public mistrust over wiretapping is fueled by other
spectacular administration failures–part of the post-Hurricane
Katrina syndrome. Most Americans don’t trust the administration’s
promises to be protecting us and having our best interests at
heart. But the wiretapping issue in particular could be the spark to
turn the country back to some semblance of sanity.