Earlier, I argued that if we accept Attorney General Gonzales’ argument for the legitimacy of warrantless wiretaps on Americans, that this argument can be used to justify anything that the Bush Administration may want to do.
Basically, if, as Gonzales argues, the Constitution gives President Bush the authority to sign secret executive orders suspending the 4th Amendment, then he can suspend any Amendment. If he can replace the Judicial branch of government with his own Justice Department, and rewrite legislation as he sees fit, then he can eliminate (in practice if not in fact) the Judicial and Legislative branches of government.
Effectively, it is an argument that states that the Constitution does not exist except insofar as it pleases the President to use it.
As further proof of this, U.S. News and World Report has revealed that the Bush Administration is using the same arguments to claim the right to conduct warrantless physical searches of the home and business of “terror suspects.” That is to say, if you are a “terror suspect”, government issues can come into your house and look around without going to a judge and proving probable cause.
That is to say, government agents can look through your home and business after calling you a “terror suspect” without having to show anybody any good reason to believe you really are a “terror suspect”.
We Are All “Terror Suspects”
The article provides a way of illustrating how each and every one of us can be considered a “terror suspect” by the Bush Administration. According to the article, “At least one defense attorney representing a subject of a terrorism investigation believes he was the target of warrantless clandestine searches.”
For my purposes, it does not matter whether this belief is true or the product of an overactive imagination. What matters to me are the logical implications of the arguments that the Bush Administration is using, and how they show that we are all “terror suspects”. Because we are all “terror suspects”, Bush and Gonzales are claiming the legal right to enter each and every one of our homes at will. That is to say, they are arguing that the 4th Amendment to the Constitution does not exist.
So, how does this go?
We have here the case of a lawyer working for a “subject of a terrorism investigation.” This subject need not be guilty of anything. In order to launch a ‘terrorism investigation’, the government needs to do nothing more than point to a person and say, “I am going to investigate that person to see if he or she is in any way involved in terrorist activities.”
A “terrorist activity”, in turn, is any criminal act intending to intimidate or coerce the civilian population of the United States (a definition that applies to many of the Bush Administration’s own policies unless we accept the Administration claim that everything the President does is, by definition, legal).
So, now that the government has targeted an individual for a “terrorism investigation” – with no need for probable cause and no evidence other a desire to find the target individual guilty – instantly his lawyer also becomes the target of a “terrorism investigation”. After all, the target may be getting information from other terrorists through his lawyer, and this is exactly the type of information that the government will want to intercept. Therefore, the government (without a warrant) taps the phone and searches the home and business of the target’s lawyer.
If the Bush Administration can imagine that the target is getting information from his lawyer, then that lawyer would have to be getting that information from somewhere. Likely possibilities include everybody who that lawyer works with. The law offices themselves, and everybody who works there, can now be named subjects of a “terrorism investigation”. Their homes may now be searched without a warrant in the name of national security.
Where might they be getting information? One possibility is that they could be getting information from another client, or an individual who works for another client. So, now, every one of that law firm’s clients are now subjects of a “terrorism investigation.”
Or, perhaps, somebody who works at the law firm writes a blog. Blogs have to be considered ‘international communication.’ One way to pass along information would be to code it into a blog entry, and one way to receive information would be to have others code it into the comments they make to those blog entries.
Now, everybody who reads the blog of the employee of a law firm where one member is representing a terrorist suspect can now be named the subject of a terrorism investigation. Sorry, folks. As it turns out, because you read this blog, the government may now tap your phones and enter your house at will – without a warrant.
The Bush Administration is keen to point out that it only wishes to spy on terrorism suspects – which it claims it must have the power to do in order to keep America safe.
What the Bush Administration does not mention is that we are all terrorism suspects. Because we are all terrorism suspects, the government claims the right to eavesdrop on all of our communications and enter all of our homes. It claims the right to pick any one of us up off of the street and ship us to secret prisons, where we can be tortured until we confess to the crimes we are suspected of committing (even though our confession may well be a desperate act we commit in order to end the torture).
Furthermore, according to Attorney General Gonzales, the Constitution itself shows that the Founding Fathers intended the Executive Branch to have and to use these powers.
If we combine this report with other news, we get an interesting contradiction. The Bush Administration is claiming that it is only listening in on “international calls” made by “suspected terrorists” (meaning: “anybody it wants to spy on”) in the United States. However, a domestic physical search is not an “international communication”. If the White House is claiming the authority to engage in domestic physical searches without a warrant, then it we must assume that they claim the right to eavesdrop on domestic communications without a warrant.
The article also reports that the Bush Administration has not denied the use of warrantless physical searches. At one point, in Congressional testimony, Gonzales claimed that Bush has only authorized warrantless eavesdropping. However, in a follow-up letter to the head of the Senate Judiciary Committee, “"I did not and could not address operational aspects of the program, or any other classified intelligence activities.”
What are these classified intelligence activities? Do they include warrantless eavesdropping on domestic communications and physical searches?
If we want to comfort ourselves with the thought that the Administration claims the authority to use these powers only against “terrorism suspects”, we must be aware that anybody who communicates with somebody who might communicate with somebody who could be communicating with somebody who engages in a form of communication (such as writing a blog or posting to a discussion board) that somebody that the Bush Administration wants to find more information about is a “terrorism suspect”.