The National Security Agency illegally spied on every American

Americans who saw, heard or will soon read about the recent interview with former National Security Agency analyst Russell Tice on MSNBC’s Countdown with Keith Olbermann are in for a rude awakening. According to Tice, over the last eight years the NSA has been not only eavesdropping on a few suspicious Americans and/or bad guys, but they have spied domestically on all Americans, without exception.

You will recall that the Bush administration initially explained to the American people and to Congress that the NSA eavesdropping program was limited to communications between countries abroad, and between foreign evil-doers in places like Iran and Iraq. No one else. Caught out on that one, the Bush administration admitted that eavesdropping sometimes involved persons in the United States, but only incoming communications from known terrorists. (How they knew this was a national security secret.) Belatedly, it had to be admitted that sometimes the communications were in both directions, and on the president’s say-so, they were intercepted without warrant.

Asked how, in violation of both the FISA law and the U.S. Constitution, the administration could justify so many warrantless wiretaps on Americans, President Bush explained, in effect, that a wiretap requires a court-ordered warrant. If there is no warrant, that means there was no wiretap. That’s a curious inversion of logic and language.

The logic employed here bears some resemblance to the Bush legal counsels’ explanation as to why the prisoner abuse at Guantanamo, Abu Ghraib and other sites did not violate the U.S. Constitution’s reasonably clear ban on “cruel and unusual punishment.� It goes like this: “Punishment follows criminal trial and conviction. If there is no trial and conviction, then there’s no punishment.� Translation: Since the Bush administration was unable or unwilling to bring the detainees to trial, no matter what they did to the detainees, it wasn’t punishment.

A similar inversion of logic and language: In one of his many different explanations of why he chose to invade Iraq, President Bush stated that the United States went into Iraq “because the al-Qaeda terrorists decided to make Iraq the primary battleground.� Asked by a puzzled reporter how this could be so, given that the United States invaded Iraq before the arrival of al-Qaeda in the country, Bush looked blank for a few moments, struggled for an answer, and then tilted his head and asked: “So what?�

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The ultimate explanation for all the above is an attitude reflected in the statement, as Nixon told Frost in the current movie: “When the president does it, it’s not illegal.â€�  This reading of the Constitution is way off target. False logic and language aside, what was the NSA really doing these past eight years?

Russell Tice has described, and will so testify before Congress, how, on orders from above, the NSA eavesdropped on virtually all foreign and domestic phone calls, cell phones, text messages, faxes, e-mails, Internet accesses and other communications, of all Americans. That was the initial dragnet to capture everything. Then sophisticated computerized “meta-analysis� systems and specialized “algorithms “ were applied to decide what to retain and what to discard, such as your innocuous phone call for home delivery of pizza. There are limits, after all, to NSA’s central data storage capacity.

More significantly, however, Tice said that, on higher orders, NSA targeted certain categories of Americans for continuous “24/7� listening, monitoring by human agents (not just computers), further critical analysis, and permanent data storage. These categories included most activists for peace and justice, most civil rights organizations such as the ACLU, most environmental protection advocates, and, get this, virtually every news organization and every reporter and journalist in America. Whether you work with a giant news agency or with your local hometown newspaper, you can rest assured that every communication you made or received has been wiretapped, networked and recorded, not only in your office, but also in your house when you go home at night.

The Obama administration now faces the daunting task of reviewing, overturning and/or revising the Bush administration’s illegal wiretap program. This is not to say that we throw out effective technologies for detecting and deterring terrorism. But, as President Obama has emphasized, we can have our security and have our Constitutional rights, too. This Insight column has previously discussed a rational, legal and effective strategy, based on recognizing an important distinction. (See “Legitimate security surveillance versus unlawful, warrantless wiretapping, “ in The Lakeville Journal, October 11, 2007.)

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In a nutshell: We must recognize that it is Constitutionally acceptable to carry out general “epidemiological risk surveillance� of communications to determine whether they contain evidence of actual or impending criminal terrorist activity. But when authorities want to then target, pursue and/or record persons’ communications or premises, then a warrant is required as a matter of law. Under FISA, officials may go ahead and act immediately, provided that within three days they apply to a court to obtain the constitutionally required warrant.

The devil, as always, is in the details of the rules and practices to be applied, but the basic legal and Constitutional requirement of a warrant, and the reasons for it, should be clear to all.

Sharon resident Anthony Piel is a former legal counsel and director of cabinet of the World Health Organization.