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.

Wednesday, December 21, 2005

Why is Bush "helping terrorists" by disclosing surveillance techniques?

Ever since The New York Times disclosed that the Bush Administration has been eavesdropping without warrants on the communications of American citizens, the Administration and its supporters have been indignantly accusing the Times and its sources of harming national security and "helping" Al Qaeda – as though terrorists didn’t realize that we were trying to eavesdrop on their communications until the Times ran this story.

Since this disclosure, Bush has repeatedly insisted that merely mentioning that we eavesdrop on terrorists is to do harm to national security -- claiming, for instance, in his Saturday speech that "our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk." Similarly, in his Monday Press Conference, he said that "discussing this program is helping the enemy" because "the discussion about how we try to find them will enable them to adjust."

At the Press Briefing of Attorney General Gonzalez, an Administration aide -- when asked what possible harm could come from the Times article -- actually argued that the more we mention that we eavesdrop on terrorists, the more we help them: "The more we discuss it, the more we put it in the face of those who would do us harm, the more they will respond to this and protect their communications and make it more difficult for us to defend the nation."

But this same George Bush over the last two years -- as he campaigned for his own re-election and then as he campaigned for the permanent renewal of the Patriot Act – has repeatedly talked about, in detail, how we engage in surveillance against terrorists, how we try to eavesdrop on their communications, and what methods we have created and now use to monitor what they are doing and saying.

In fact, Bush not only repeatedly disclosed over the course of the last two years the fact that we eavesdrop on the telephone calls of suspected terrorists -- the same disclosure which, when made by the Times last week, has supposedly done such grave harm to national security -- but Bush has done so in far greater detail than anything the Times said. Worse, Bush has made similar public disclosures with regard to countless other intelligence and surveillance techniques which we use against terrorists.

Apparently, it’s perfectly acceptable to disclose all sorts of information about our intelligence and surveillance activities when the purpose is to help Bush win re-election or the passage of laws he wants, but it is traitorous and highly dangerous to disclose far less revealing information when the purpose is to expose illegal behavior by his Administration.

Here are but a few examples of George Bush passing on information about how we monitor terrorist suspects and thereby helping Al Qaeda to harm America:

George Bush, telling terrorists about how we use "roving wiretaps" to eavesdrop on their calls -Columbus, Ohio - June 9, 2005:

One tool that has been especially important to law enforcement is called a roving wiretap. Roving wiretaps allow investigators to follow suspects who frequently change their means of communications. These wiretaps must be approved by a judge, and they have been used for years to catch drug dealers and other criminals. Yet, before the Patriot Act, agents investigating terrorists had to get a separate authorization for each phone they wanted to tap. That means terrorists could elude law enforcement by simply purchasing a new cell phone.

The Patriot Act fixed the problem by allowing terrorism investigators to use the same wiretaps that were already being using against drug kingpins and mob bosses.

George Bush, in 2004, telling terrorists that we are engaging in notice-less "sneak and peak" searches of their apartments - Hershey, Pennsylvania, April 19, 2004:

The Patriot Act authorizes what are called delayed notification search warrants. I'm not a lawyer, either. (Laughter.) These allow law enforcement personnel, with court approval, to carry out a lawful search without tipping off suspects and giving them a chance to flee or destroy evidence. It is an important part of conducting operations against organized groups.

George Bush, alerting terrorists to changes in our techniques for eavesdropping on their cell phone calls - Baltimore, Maryland, July 20, 2005:

Before the Patriot Act agents could use wire taps to investigate a person committing mail fraud, but not specifically to investigate a foreign terrorist carrying deadly weapons. Before the Patriot Act, investigators could follow the calls of mobsters who switched cell phones, but not terrorists who switched cell phones. That didn't make any sense. The Patriot Act ended all these double standards.

George Bush, alerting terrorists to the fact that we are eavesdropping on their telephone calls - Baltimore, Maryland, July 20, 2005:

The judicial branch has a strong oversight role in the application of the Patriot Act. Law enforcement officers need a federal judge's permission to wiretap a foreign terrorist's phone, or to track his calls, or to search his property.

George Bush, in 2004, telling terrorists that we monitor them by tracing their "money trails" - Hershey, Pennsylvania, April 19, 2004:

Before September the 11th, law enforcement could more easily obtain business and financial records of white-collar criminals than of suspected terrorists. See, part of the way to make sure that we catch terrorists is we chase money trails. And yet it was easier to chase a money trail with a white-collar criminal than it was a terrorist. The Patriot Act ended this double standard and it made it easier for investigators to catch suspected terrorists by following paper trails here in America.

George Bush, telling terrorists how the Government monitors their computer communications and obtains their e-mails - Columbus, Ohio, June 9, 2005:

Third, we need to renew the critical provisions of the Patriot Act that updated the law to meet high-tech threats like computer espionage and cyberterrorism. Before the Patriot Act, Internet providers who notified federal authorities about threatening e-mails ran the risk of getting sued. The Patriot Act modernized the law to protect Internet companies who voluntarily disclose information to save lives.

It's common sense reform, and it's delivered results. In April 2004, a man sent an e-mail to an Islamic center in El Paso, and threatened to burn the mosque to the ground in three days. Before the Patriot Act, the FBI could have spent a week or more waiting for the information they needed. Thanks to the Patriot Act, an Internet provider was able to provide the information quickly and without fear of a lawsuit -- and the FBI arrested the man before he could fulfill his -- fulfill his threat.

George Bush, detailing the threat priorities of the Homeland Security Department - Columbus, Ohio, July 20, 2005:

That's what Mike Chertoff recommended to me after the London bombings. In other words, he took a look at the situation and said, let's enhance our security and infrastructure points, and he raised the threat level.

We're widening the use of explosive detection teams and nearly doubling the number of rail security inspectors. We're targeting assets and resources to our infrastructure. We're accelerating the development and deployment of new technologies to rapidly detect biological, radiological and chemical attacks. That's what Mike announced last week. We're going to continue to make sure that we assess our weaknesses and strengthen our transportation systems.

George Bush, detailing security measures taken against threats to American seaports - Columbus, Ohio, July 20, 2005:

This is a gateway for foreign markets, which provides an opportunity and an important challenge for us. And we recognized that early. We've made dramatic advancements in port security since September the 11th. We've established strict new safety rules for both domestic and international shipping, and we have taken new steps to identify and inspect high-risk cargo. And that's important for our citizens to understand.

We launched what we call the Container Security Initiative, to screen American-bound containers at more than 35 foreign ports so we can identify dangerous cargo before it reaches our shore. Doesn't that make sense? It seems like it does to me. In other words, we're stationing Custom folks overseas and we're working with places that ship goods to us, to inspect cargo there so we don't burden our ports.

And, for good measure, here are the Editors of National Review -- before the Times ever breathed a word about the President's eavesdropping "program" -- damaging national security and helping Al Qaeda by telling terrorists that we monitor their phone calls, use roving wiretaps, examine their library records, use "sneak-and-peak" searches of their apartments, and read their e-mails. Doesn't President Bush and National Review realize that "discussing th(ese) program(s) is helping the enemy" because "the discussion about how we try to find them will enable them to adjust"?

There aren't very many things more likely to "harm national security" than using the term "national security" as a cynical political weapon used to depict political opponents as traitors and to intimidate others away from disclosing illegal conduct by the Government.

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