“35 Add to that all government information—passport applications, drivers’ licenses, judicial and divorce records, IRS files, complaints by nosy neighbors, plus the latest hidden camera surveillance—and one has the perfect American computer version of Gestapo or KGB files.
There is growing evidence that in 2003 the TIA project was stopped in name only. The National Security Agency continued snooping and collecting data as before, while the analytical work was transferred to a new, totally secret agency inside the Pentagon known as the Counterintelligence Field Activity (CIFA). Its original specialty was illegally watching, photographing, and harassing peaceful public protests outside foreign and domestic military bases. According to Walter Pincus of the
In 2005, CIFA reportedly “contracted with Computer Sciences Corp. to buy identity-masking software, which could allow it to create fake Web sites and monitor legitimate U.S. sites without leaving clues that it had been there.” A former senior Pentagon official familiar with CIFA told Pincus, “They started with force protection from terrorists, but when you go down that road, you soon are into everything .. . where terrorists get their money, who they see, who they deal with.” Because the National Security Agency is a major source of CIFAs data, that may have been one reason why Bush ordered the NSA to engage in surveillance of citizens completely outside the purview of the FISA court, which probably would not have approved open-ended data mining.37
One further way in which President Bush has shown his contempt for the Constitution is his use of what are called “signing statements.” During the first six years of his presidency, Bush did not exercise his constitutionally authorized veto over a single piece of legislation passed by Congress, but in his first term alone, he issued 505 extraconstitutional challenges to various provisions of legislation that had been enacted by Congress.38 Through “interpretive” statements issued at the time he signs them, the president disagrees with one or more provisions contained in the legislation and therefore reserves the right not to implement them. According to David Golove, a New York University law professor, “The signing statement is saying T will only comply with this law when I want to, and if something arises in the war on terrorism where I think it’s important to torture or engage in cruel, inhuman, and degrading conduct, I have the authority to do so and nothing in this law is going to stop me.’ “39
Many of these statements amount to illegal line-item vetoes. They often have the effect of nullifying legislation that has been passed by both houses of Congress and signed by the president. In 1998, in
One of the most striking examples of the legal quagmire created by these signing statements lies in the 2006 Defense Appropriation Bill. On the initiative of Republican senator John McCain, who was himself tortured while a prisoner of war in Vietnam, the Senate added an amendment to the defense-spending authorization and called it the Detainee Treatment Act of 2005. It reads, “No individual in the custody or under the physical control of the United States government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment,” and it provides for “uniform standards” of interrogation. President Bush threatened to exercise his first veto over the whole Pentagon budget because of this amendment. Then he and Vice President Cheney lobbied Congress intensively in order to retain the Pentagon’s and the CIA’s “right” to the secret use of torture (although never termed torture, of course) without fear of domestic prosecution. When the Senate responded by passing McCain’s torture ban by a veto-proof vote of 90-9, the White House turned to extralegal means to get what it wanted.42
On December 15, 2005, in a photo session at the White House, President Bush and Senator McCain shook hands and Bush announced that this landmark legislation would make it “clear to the world that this government does not torture.” However, on Friday evening, December 30, when he actually signed the bill at his Crawford, Texas, ranch, Bush added a signing statement that essentially gutted McCain’s amendment. It said that he would construe the new law “in a manner consistent with the constitutional authority of the president,” that he would order whatever he deemed necessary in his war on terror, and that, as president “in a time of war,” he was beyond any legal constraints. Elisa Massimino, the Washington director of Human Rights First, commented that “[t]he basic civics lesson that there are three coequal branches of government that provide checks and balances on each other is being fundamentally rejected by the executive branch.”43
It is not clear how this muddled situation will ultimately be resolved, but its immediate costs are high. A former army interrogator at Abu Ghraib prison writes, “Those who serve in the prisons of Iraq deserve to know clearly the difference between legal and illegal orders. Soldiers on the ground need a commander in chief who does not seek strained legalisms that ‘permit’ the use of torture.... No slope is more slippery, I learned in Iraq, than the one that leads to torture.”44 As of mid-2006, none of President Bush’s signing statements had been tested in court.
Moreover, it is not just the executive branch that has been tearing at the fabric of the Constitution. Through its partisanship, complacency, and corruption, Congress has done much to ensure that the crisis of the American republic will be fatal to democratic government. As constitutional specialist Noah Feldman writes, “For the last four years, a republican Congress has done almost nothing to rein in the expansion of presidential power. This abdication of responsibility has been even more remarkable than the president’s assumption of new powers.”45 Al Gore, who served eight years in the House, eight years in the Senate, and presided over the Senate for eight years as vice president, observes, “The sharp decline of congressional power and autonomy in recent years has been almost as shocking as the efforts by the executive branch to attain a massive expansion of power.... Moreover, in the Congress as a whole—both House and Senate—the enhanced role of money in the re-election process, coupled with the diminished role for reasoned deliberation and debate, has produced an atmosphere conducive to pervasive institutionalized corruption. ... It is the pitiful state of our legislative branch that primarily explains the failure of our vaunted checks and balances to prevent the dangerous overreach of the executive branch, which now threatens a radical transformation of the American system.”46
I happen to be a registered voter in the Fiftieth Congressional District of California in northern San Diego county, where, in early 2006, our Republican representative for the previous fourteen years, Randy “Duke” Cunningham, received the longest sentence to a federal prison—eight years and four months—ever imposed on a member of Congress. Cunningham, a decorated Vietnam War pilot, confessed to pocketing $2.4 million, the largest bribe ever paid to a member of Congress. He had used his official positions on the Appropriations and Intelligence Committees to see that contracts worth millions of dollars went to defense manufacturers who had paid him off, and he did this primarily by adding classified earmarks to the Defense Appropriations bills and pressuring Pentagon officials to buy things they had made clear they did not want. The term “earmarks” is congressional jargon for spending by a lone representative, who surreptitiously tacks expenditures onto a larger appropriations bill that the
