Jackson Free Press

Whether you've borrowed Mao Tse-tung's Little Red Book from the library or like to hang out at gay-themed events, the Bush administration wants to know about it.

If you've been following the news this week, you know about the whole domestic spying fiasco. Right-wing pundit Matt Drudge quickly "reported" that Bush's behavior wasn't new--that Clinton and Carter did the same thing--and the unchecked claim is making the rounds, now, on right-wing blogs. ThinkProgressive has done a nice job of cutting through Drudge's smokescreen:

The top of the Drudge Report claims "CLINTON EXECUTIVE ORDER: SECRET SEARCH ON AMERICANS WITHOUT COURT ORDER…" It's not true. Here's the breakdown –

What Drudge says:

Clinton, February 9, 1995: "The Attorney General is authorized to approve physical searches, without a court order"

What Clinton actually signed:

Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign Intelligence Surveillance] Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

That section requires the Attorney General to certify is the search will not involve "the premises, information, material, or property of a United States person." That means U.S. citizens or anyone inside of the United States.

The entire controversy about Bush's program is that, for the first time ever, allows warrantless surveillance of U.S. citizens and other people inside of the United States. Clinton's 1995 executive order did not authorize that.

Drudge pulls the same trick with Carter.

What Drudge says:

Jimmy Carter Signed Executive Order on May 23, 1979: "Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order."

What Carter's executive order actually says:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

What the Attorney General has to certify under that section is that the surveillance will not contain "the contents of any communication to which a United States person is a party." So again, no U.S. persons are involved. {emphasis mine}

The bit about warrantless searches sounds very familiar to me because I remember writing in several of my books about Writs of Assistance, general warrants permitting agents of the British crown to search colonial residences without warrant if they suspected smuggling, which were a major factor leading to the American Revolution. The Writ of Assistance was the specific form of government abuse of power that the Fourth Amendment was drafted to prevent. James Otis' famous speech (as recorded by a young John Adams), arguing against the British policy of general warrants, was said to have been one of the major events that instigated the movement for American independence. Otis, for those of you who don't know the backstory, gave up a cushy job as a royal prosecutor because he conscientiously refused to hold up general warrants as if they were valid. Or, as Matt Drudge and company would probably put it, he "came unhinged" and "lost all credibility." Excerpt:

I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand and villainy on the other as this Writ of Assistance is.

It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book. I must therefore beg your Honors' patience and attention to the whole range of an argument that may perhaps appear uncommon in many things, as well as to points of learning that are more remote and unusual, that the whole tendency of my design may the more easily be perceived, the conclusions better descend, and the force of them be better felt. I shall not think much of my pains in this cause, as I engaged in it from principle.

I was solicited to argue this cause as Advocate-General; and, because I would not, I have been charged with desertion from my office. To this charge I can give a very sufficient answer. I renounced that office and I argue this cause from the same principle; and I argue it with the greater pleasure, as it is in favor of British liberty, at a time when we hear the greatest monarch upon earth declaring from his throne that he glories in the name of Briton and that the privileges of his people are dearer to him than the most valuable prerogatives of his crown; and as it is in opposition to a kind of power, the exercise of which in former periods of history cost one king of England his head and another his throne. I have taken more pains in this cause than I ever will take again, although my engaging in this and another popular cause has raised much resentment. But I think I can sincerely declare that I cheerfully submit myself to every odious name for conscience' sake; and from my soul I despise all those whose guilt, malice, or folly has made them my foes. Let the consequences be what they will, I am determined to proceed. The only principles of public conduct that are worthy of a gentleman or a man are to sacrifice estate, ease, health, and applause, and even life, to the sacred calls of his country.

These manly sentiments, in private life, make good citizens; in public life, the patriot and the hero. I do not say that, when brought to the test, I shall be invincible. I pray God I may never be brought to the melancholy trial; but, if ever I should, it will then be known how far I can reduce to practice principles which I know to be founded in truth. In the meantime I will proceed to the subject of this writ.

Your Honors will find in the old books concerning the office of a justice of the peace precedents of general warrants to search suspected houses. But in more modern books you will find only special warrants to search such and such houses, specially named, in which the complainant has before sworn that he suspects his goods are concealed; and will find it adjudged that special warrants only are legal. In the same manner I rely on it, that the writ prayed for in this petition, being general, is illegal. It is a power that places the liberty of every man in the hands of every petty officer. I say I admit that special Writs of Assistance, to search special places, may be granted to certain persons on oath; but I deny that the writ now prayed for can be granted, for I beg leave to make some observations on the writ itself, before I proceed to other Acts of Parliament.

In the first place, the writ is universal, being directed "to all and singular justices, sheriffs, constables, and all other officers and subjects"; so that, in short, it is directed to every subject in the King's dominions. Every one with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner, also, may control, imprison, or murder any one within the realm. In the next place, it is perpetual; there is no return. A man is accountable to no person for his doings. Every man may reign secure in his petty tyranny, and spread terror and desolation around him, until the trump of the Archangel shall excite different emotions in his soul. In the third place, a person with this writ, in the daytime, may enter all houses, shops, etc., at will, and command all to assist him. Fourthly, by this writ not only deputies, etc., but even their menial servants, are allowed to lord it over us. What is this but to have the curse of Canaan with a witness on us: to be the servants of servants, the most despicable of God's creation?

Now, one of the most essential branches of English liberty is the freedom of one's house. A man's house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.

So Writs of Assistance aren't just un-American; they're one of the reasons why America became America in the first place. When the Bush administration permits unwarranted searches without documented cause under presidential authority, it is no different, in principle, from when His Majesty permitted unwarranted searches without documented cause under royal authority. No different. President George W. Bush came to office advocating small government, low taxes, and a strong defense. What he did was restore Writs of Assistance and suspend habeas corpus, offer to fund religious organizations (circumventing the establishment clause), set up "Free Speech Zones," support the jailing of journalists for refusing to reveal sources, and on and on. Thomas Jefferson famously cut-and-pasted his own edition of the New Testament by clipping out the parts he disagreed with. It looks as if George W. is doing much the same thing with the Constitution.

Now, I realize that most of us aren't likely to be seen as potential terrorists--certainly not as likely as, say, 16-year-olds who doodle acronyms on their school binders. But history tells us that if we're not vigilant, it's only a matter of time before our names, too, end up on the "naughty" list. Action is being taken, but we all need to do our parts--on the left and on the right (scroll down to "Big Brother at Home")--to make sure warrantless searches never become an accepted fact of everyday life.

Previous Comments

ID

103986

Comment

I can't think of a issue less likely to bother me.

Author

Ironghost

Date

2005-12-23T23:08:55-06:00

ID

103987

Comment

Less likely? Then you need to visit this site, my brother. I promise you'll find issues there that bother you much less than domestic spying does. For the record, though, this bothers me quite a bit. In fact, I think it might be the straw that finally breaks the camel's back and makes an ACLU volunteer out of me--as soon as I finish this book... Cheers, TH

Author

Tom Head

Date

2005-12-24T00:36:01-06:00

ID

103988

Comment

Agreed Tom, although I am not quite ready to jump on the ACLU's wagon the domestic spy issue is about as close to an impeachable offense as GW has gone (that we are yet aware of). True to form the administration responds by bashing in the heads of anyone that oppose their way of thinking. This does not absolve the Times and the timing of the article which was in my opinion is somewhat suspect with the on going debate of the Patriot Act. 2006 will reveal what the real impact of this story is; but as more and more Republician lawmakers running for re-election start to distance themselves from Bush, 2005 may go down as the year that defines how truly lame this duck really is.

Author

Dennis

Date

2005-12-26T08:33:30-06:00

ID

103989

Comment

Yes, it kills me how some–but, thankfully, not the smartest–conservatives are coming up with every excuse imaginable for spy-gate. And it's remarkable how they are willing to lie to say it's the same thing past presidents did (as if that would somehow excuse it, but in their small minds....). Thanks for helping debunk the lies, Tom. Bush is a problemo, folks. Fortunately, most Americans are beginning to wise up about it, leaving his excuse-makers looking pretty damn silly these days.

Author

DonnaLadd

Date

2005-12-26T12:57:51-06:00

ID

103990

Comment

Things have really gone sour for the Administration on this one; when they trot former Sec. of State Powell out to go to bat for W you can know for sure that the Bush spinners are ramping up the warp drive. Pretty good indication the Bush Team is concerned this issue has some legs, time will tell.

Author

Dennis

Date

2005-12-26T17:12:46-06:00

ID

103991

Comment

Good posts, folks. And the defections from the right have to be hurting his ability to keep his base in line. Here's another: Tucker Carlson. Cheers, TH

Author

Tom Head

Date

2005-12-26T23:35:52-06:00

ID

103992

Comment

The National Security Agency has a new enemy: Quakers. Yes, Quakers. Apparently, Quakers--you know, those folks who protest every single war because they're PACIFISTS--are now seen as a terrorist threat. Congress, please? Please impeach this idiot president?

Author

Tom Head

Date

2005-12-26T23:48:04-06:00

ID

103993

Comment

Tom I have to agree with you on the impeachment as I felt that should have happened with the administration's handling of the response to Katrina. But alas, as long as the GOP remains in control in Congress this will only be a dream. Since Congress lowered the impeachment standard to include lying about oral sex, I do feel that Mr. Bush's bungling of his sworn duties rise to new level. I don't see the GOP changing the "slash & burn" tactics that began when they took control of the Congress changing and the "Moral Majority" hijacked the party.

Author

Dennis

Date

2005-12-27T08:29:14-06:00

ID

103994

Comment

Tom, when I mean an issue doesn't concern me, it doesn't bother me. I'm not planning on doing anything harmful to government, because I believe that intertia and ineptitude and cross-aisle opponents will keep stuff like this brief. Until someone thinks we need it again, when they'll trot it out and claim it's "for our good". I simply don't believe that the GOP, as headed by Bush, can be that effective and efficent to make a domestic spying agency a real threat. I'd worry if he were a better president, but he ain't.

Author

Ironghost

Date

2005-12-27T10:47:55-06:00

ID

103995

Comment

Ironghost, I hope you are correct and if past performance in the Intel world is a guide then prehaps you are. As anyone seen a WMD lately the White House would like to know? Of course, I would sleep much better at night not worrying about Karl Rove and his gang of thugs reading my email if former FEMA head, Michael Brown was put in charge of the Department of Peeping and Evesdropping that's D.O.P.E.

Author

Dennis

Date

2005-12-27T13:01:10-06:00

ID

103996

Comment

The problem with conspiracies is that it requires you believe that thousands, if not millions of people can pull of the most secretive, most complex, and most wide reaching events and affect millions more without breathing a word of it in the slightest and without leaving any evidence that such a massive undertaking ever happened. Bush in himself doesn't seem to have the skills. I worry about the people who do think this is a good idea. The problem is, if not this, then what?

Author

Ironghost

Date

2005-12-27T14:49:46-06:00