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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, December 24, 2005

The return of the Radiological Bomb

Whenever the Bush Administration wants to ramp up its fear-mongering in order to scare people into complying with its agenda, it always turns to its buzzing ace in the hole – the radiological bomb. When it's time for this danger to be paraded around, we are subjected to tales of League of Justice-like heroic struggles led by George Bush against an array of nuclear villans. The President is then applauded for doing whatever dirty work he needs to do to protect us from this ultimate danger. For that reason, the sudden emergence of this controversy over the Bush Administration’s ostensibly novel and aggressive warrantless surveillance in search of unusual radiological activity at Muslim mosques and businesses inside America has a strong deja vu feel to it, and more than a whiff of manipulation.

In 2002, when the Administration wanted to roll out its shining new internal detention policy -- whereby American citizens could be detained and incarcerated indefinitely with no due process based on nothing more than George Bush’s unreviewable, secret say-so -- it did so by having John Ashcroft and others launch a media blitz, where they flamboyant announced that the Administration caught the dreaded "Dirty Bomber," Jose Padilla, whose (uncharged, unproven) diabolical plot to kill us all with a radiological bomb was so scary that we had to throw him (and then other citizens like him) into a military hole indefinitely, without access to a lawyer and without even being charged with a crime.

And, anyone who opposed the Administration’s wholesale denial of due process to this American citizen was, by definition, guilty of trying to block George Bush from protecting Americans from being melted with radiation (probably because such whiny nay-sayers secretly sympathize with the terrorists and want them to win). When people are petrified about radiological bombs being detonated in their cities, nobody is much in the mood for listening to boring claptrap about constitutional precedents and due process.

Americans were terrorized enough by this radiological threat into remaining quiet while the Administration went about institutionalizing one of the worst and most un-American nightmares imaginable -- having your own Government arrest you without charges and stick you in a prison indefinitely, where you are denied any contact with the outside world (including a lawyer), even denied the right to know why you are there, and denied any opportunity to prove your innocence.

And when the Administration, during the run-up to the Iraq invasion, wanted to smash any remaining doubts about whether it was really such a good idea to invade another country which had not attacked us and which could not do so, it dispatched Condoleezza Rice and others to start ominously talking about "mushroom clouds" and uranium enrichment and "the world’s most dangerous weapons in the hands of the most dangerous dictators." And that settled things, good and quick. Yeah, war is a last resort and all that, but if the alternative is to sit around waiting for a Saddam-armed terrorist to vaporize us all with radiation, let’s get that invasion going. What are we waiting for?

And now, in the midst of a very serious and escalating eavesdropping scandal over patent lawlessness at the White House, what is suddenly thrown into our laps and our minds? It’s that dreaded radiological bomb again, this time being cooked up at shadowy Muslim mosques by evildoers who want to melt our children. And what does this unauthorized "leak" tell us? That George Bush has been on the hunt to stop them – by breaking some eggs and maybe even ignoring some technical paperwork procedures. But when it comes to stopping Muslims detonating radiological bombs inside America, isn’t overzealousness a good thing? Is it really necessary to comply with all of that paperwork – all of those bureaucratic warrant procedures which the subsersive hippy losers are always yapping about – in order to stop terrorists from using nuclear weapons against us?

And presto, in the public mind, the NSA law-breaking scandal is immediately transformed into a fear-driven referendum, yet again, on whether we want George Bush to protect us from nuclear-wielding Arab terrorists or not, even it means that he breaks a few petty rules in the process. It’s the left-wing, egg-headed law professors and ACLU whiners, with all of their tedious, legalistic paperwork obsessions about "probable cause" and warrants, versus the resolute, rule-defying cowboy doing his best to hunt down the Muslim terrorists among us in order to protect us and our children from being melted. That’s not much of a contest, and it’s one that the cowboy has won again and again. And it's the only contest he's needed to win.

The Administration’s purported efforts to find radiological activity in Muslim mosques is now supposed to be thrown onto the pile along with its lawless NSA eavesdropping program, so that the whole confusing controversy is aggregated into nothing more than the same tired, irrational terrorist-defending fetish of trying to impede George Bush in his valiant crusade to protect us from The Terrorists. And sure enough, like puppets on cue, the most blindly loyal of the Bush defenders are spitting out exactly this scary tale.

And with the images now darkly dancing around in our heads of Muslims hiding in their mosques in Los Angeles and Queens and Georgia suburbs and maybe in your own backyard, standing over a toxic brew of radiology and TNT ready to zap us all with their mushroom clouds, all of this annoying chatter about FISA and the Fourth Amendment and the NSA is supposed to meekly fade away, drowned to death by nightmares of our children with their hair on fire and glowing in the dark and George Bush trying to save them.

Is there a limit on how many times or to what extent this trick will work? Can the Bush Administration do anything with impunity as long as it talks afterwards about The Terrorists with nuclear weapons? The Administration has used that trick with great success over and over, and it obviously is of the belief that this radiological well is far from dry. Is this really going to work again?

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