Tomorrow night at 9:00 p.m. Eastern, PBS's Frontline is broadcasting a new documentary entitled Spying on the Home Front, which examines the numerous ways in which the government's domestic surveillance powers have been vastly expanded since 9/11. Most of that expansion has taken place in secret, with virtually no oversight of any kind, and has remained almost completely shielded from any public debate.
Last year, I met with the program's producer, Rick Young, as they were identifying the issues they wanted to cover, and was enthused that these under-discussed issues would be the subject of a Frontline documentary. Like the Bill Moyers documentary on the pre-Iraq press failures, the program does not really contain blockbuster new revelations that are unknown to those who have been attentive to these matters, but is nonetheless very much worth watching because it powerfully dramatizes the severity of privacy erosion at the hands of a federal government operating largely in the dark.
The real value in the program is to serve as a reminder for just how little we know about what our government is doing in spying on our domestic activities and communications and the data it is collecting. In particular, it is striking how little we still know about the NSA's actions as it relates to the revelation that the Bush administration has been violating the law by eavesdropping on our telephone conversations in secret and without any judicial oversight.
One of the increasingly inexcusable lapses of the Democratic Congress thus far has been its apparent lack of interest in undertaking a real investigation into how the Bush administration used its NSA warrantless surveillance powers during the five years when it was eavesdropping on Americans in secret and illegally -- on whose conversations did they eavesdrop, how were the targets selected, what was done with the data they collected reflecting the contents of those conversations, what was the actual scope of the surveillance, what role did telecommunications companies play in enabling that illegal spying?
The documentary contains some footage of the probing and public Congressional investigations undertaken in the mid-1970s by the Church Committee, which documented for the public just how pervasive were the abuses by the federal Government of its domestic surveillance powers. It was that investigation which led the country, with a broad bipartisan consensus, to enact FISA in 1977 in order to make it a felony for our government to spy on our communications without judicial warrants. In light of the revelation that the Bush administration deliberately and consciously chose to violate that law, why is there no public and meaningful investigation by Congress into how those illegal powers were used?
Relatedly, the documentary focuses on one of the critical and still-unresolved aspects of the NSA scandal. Every time -- literally, each and every time -- administration officials such as Alberto Gonzales answered questions about the scope and breadth of the warrantless NSA surveillance program (most prominently when Gonzales appeared before the Judiciary Committee once the NSA program was revealed), they very carefully qualified their answers by emphasizing that the information they were providing was confined to "the specific NSA program" which the President acknowledged in light of the New York Times story.
Thus, when they were asked whether they were eavesdropping on purely domestic communications, or engaging in massive data mining and/or driftnets, or monitoring email communications or mail, administration officials would deny that such activities were part of the specific NSA warrantless eavesdropping program the President confirmed. They would not, however, deny in general that the administration is engaging in such activities, claiming that national security concerns prevented them from disclosing any information other than information about the specific "program which the President confirmed" (after the NYT disclosed its existence).
Put simply, what we do not know about the administration's domestic surveillance activities -- meaning how our own Government spies on us and maintains data bases reflecting our activities on U.S. soil -- vastly outweighs what we do know. But what is beyond doubt is that those activities have increased continuously in the last two decades, and that expansion has accelerated massively since the 9/11 attacks. And not only do "we" -- the citizenry -- know very little about these surveillance activities, the Congress seems to know almost as little, and does not appear to have much of an interest in finding out more, and certainly has evinced little interest in informing the public about these matters.
As the program points out, anger over the British King's ability to use "general warrants" to invade the privacy of pools of citizens without any probable cause for believing they committed a crime was one of the principal motivations of the American Revolution. It is why there is a Fourth Amendment restriction on the Government's ability to conduct searches. But the decisively un-American idea has been embraced that the 9/11 attacks and the Scary Islamic Terrorists render those concepts quaint relics of the past, and the Frontline documentary turns to the authoritarian id of the Bush following movement, John Yoo, to make that crystal clear:
YOO: Look, there's no doubt that ah. . . there are important Fourth Amendment issues here. One is, is this a reasonable search and seizure? You can still have warrantless searches, but they have to be reasonable.And then the second question is, does that restriction apply to wartime operations. We don't require a warrant, we don't require reasonable searches and seizures when the army, the military's out on the battlefield, attacking, killing members of the enemy.
HEDRICK SMITH: But that's usually abroad and it doesn't involve the American homeland and American citizens . . .
YOO: But this gets to my point, is do you want to make it more difficult for our government to try to stop terrorist attacks. The closer members of Al Qaeda get to the United States, the closer they get to striking our cities as they did on 9/11. You want to make it more legally difficult for the government to stop that? I don't think so.
That is the warped authoritarian mindset that has governed our country for the last six years. The "battlefield of war" includes every square inch of the globe, including the American "homeland." The powers which the U.S. military has on a battlefield of war as applied to foreign soldiers are exactly the same as the powers which the military's Commander-in-Chief, the President, has on U.S. soil as applied to American citizens. And no limits on the President's powers are cognizable, including the most basic constitutional limits, because -- as Yoo puts it -- "you want to make it more legally difficult for the government to stop" the Terrorists?
Because there is more discussion now than there was, say, two years ago or even a year ago about the Bush administration's radicalism, there is some sense that these issues are now known and have been thoroughly examined. But the opposite is really true. Compared to the radicalism of this presidency and the expansion of unchecked and unsupervised powers, what we know is a tiny fraction of what we should know.
Thanks to a blindly compliant Congress and a tragically anemic press, the Frontline documentary is absolutely right when it pronounces: "9/11 indelibly altered America, in ways that we are just now beginning to examine and question." This documentary -- a preview of which is embedded below -- crystallizes just some of the critical, entirely unresolved issues awaiting meaningful investigation by our Congress and by the press.
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