e n d n o t e s  

k a t h e r i n e  m c n a m a r a


 I am powerful, I am omnipotent, I am a hero, I am gigantic, I am colossal.
King of Assyria, c. 670 B.C.E.
All of us have heard this term “preventive war” since the earliest days of Hitler. I recall that is about the first time I heard it. In this day and time … I don’t believe there is such a thing; and, frankly, I wouldn’t even listen to anyone seriously that came in and talked about such a thing.

President Dwight D. Eisenhower, 1953,
upon being presented with plans to wage preventive war
to disarm Stalin’s Soviet Union.


This is a remarkable, sobering moment in our nation’s history, and the world’s. When the President gave his ultimatum to Saddam Hussein the night of March 17, I thought, “This is what it is to be a citizen of the empire.”2 For, America is now an empire, so the New York Times has told us, and we ought to “get used to it.” But I don’t think I will get used to it. Last September, in publishing his strategy for national security,3 the President signaled that he meant to prosecute a new kind of war in American history (new, that is, since the Indian wars4) when he announced a doctrine of preventive first-strike5; that is, authority to make preventive war against any possible threat to (in the words of a Times reporter) this nation’s “enlightened domination of the world.”6

Now this nation is at war: not the metaphorical “war on terror,” but the traditional business of killing. This is the president’s new war of prevention. Hundreds of thousands of troops in the awesome, disciplined, professional force that is the American military are in Iraq, where they are searching for, intending to destroy the rule and perhaps lives of, three men – Saddam Hussein and his two sons – and the ring of guards complicit in their despotic regime. My heart is low. We hear of the growing number of deaths among the American and British forces, the civilian casualties on all sides, and even the dead Iraqi soldiers. I wish they were not there. I wish they were not fighting. I hope beyond reason that no more people will die. Whatever the rationale for this war, now that we are in it, I hope we will win honorably. I wish our military people would return home as soon as a just peace can be established; but I fear this won't happen for a very long time.

The President tells us that this “homeland” of ours, too, is now a battlefield, because of the September attacks. Recently, I learned that journalists, or at least the Pentagon, now refer to the “battlespace,” rather than battlefield, because of such changes as satellite up-links and the twenty-four hour news cycle. During the first days, my ear on the battlespace was turned for the most part to NPR’s respectful special coverage. But on Thursday, March 19, I happened to hear on CBC’s streaming audio an interview with a Liberal M.P., Mr. John Godfrey. The interlocutor asked his opinion about Canada’s position on the war, which has been to stay at a distance, and whether Canada should question the United States more boldly. Mr. Godfrey replied – I believe I quote him accurately – “A redefinition of America is going on. We should wait for it to settle down: don’t provoke – or go too close.”

A redefinition of America is going on. This country seems to me as divided as before the Civil War. The matters at issue are not bondage and rebellion, however, but what kind of nation we have become: how we should conduct ourselves in the world, and how we should treat our people at home. Our country has amassed an astonishing military power, unknown in human history, and has decided to use that power as its principle instrument of foreign policy. And so, refusing to heed the council of so many of its old allies, unwilling to remain within those mutual associations it had carefully built over the last half-century, it has unleashed its might to provoke “shock and awe” over Baghdad. But we had already known shock and awe, here at home, on September 11, 2001. Is this, now, to be the nature of war?

In this new kind of war, in this battlespace, we look first to history to find the grounds for the right of free speech.7 Yet, I am not confidant that legal precedent is our only guide. I must ask why our basic rights were changed after the September attacks, and who has agreed to this.8 I would consider several, to me more disturbing, developments as leading to the present moment.

For, I see the President’s war9 as an instrument of his politics, and I suggest that not only the current ground and air war against Iraq, but also the so-called war on terror be understood as part of the redefinition of America remarked on by Mr. Godfrey. I do not believe that we have settled on a new definition of ourselves yet, however. I believe – perhaps desperately, perhaps defiantly – that the political process is still in operation, and that “empire” may not become our permanent condition.

If it is not, if we are to recover ourselves, we citizens ought to insist firmly that our public officials offer satisfactory answers to a series of questions. Among them would be these:

Once the war on Iraq is over – but how will we know when it is over? – must the nation accept the permanent condition of a “war on terror”? Since the end of the Cold War, presidents have come to use the military as the prime instrument of American power. Our troops are deployed in more than one hundred countries, engaged in disarming minefields, fighting drug traffickers, bringing disaster relief, and a multitude of peace-keeping or protective tasks, as well as invading Iraq. Dana Priest, of the Washington Post, writes: “When the fighting stops in Iraq, the U.S. military – 22-year old infantry soldiers – will again be given the lead in rebuilding civil society there, a mission that could easily take more than 10 years.”10 It is the military which now imposes our national will, or that of our President, on the rest of the world. Will this practice continue with the consent of the governed?

An extension of military dominance is the missile defense program,11 which is to be operational within two years. Ostensibly, it is being assembled for our protection against “rogue” states like North Korea. More important, however, it is meant to achieve the “weaponization” of space, dominated by this enlightened nation. Will we desist from this course of aggression?

And our domestic safety is to be secured by every-growing secrecy12 of government, restriction of information, hiding of documents from public view, including increasing the difficulty of FOIA searches, classification of documents, and extending the length of time documents are left classified from public knowledge. Will our civil liberties continue being limited and reduced?

Are we to live in a permanent state of “war”? Have we the governed consented to this? Who benefits from this?

In that light, I am going to watch what happens on a number of fronts, including:

1. The USA Patriot Act. Senator Russ Feingold’s (D-Wis) lone voice against the passage of that too-quickly enacted law remains available on Archipelago.13 I will follow the progress of H.R. 1157, The Freedom to Read Protection Act, introduced on March 6, which allows us some slightly increased protections against F.B.I. Under the Patriot Act, the F.B.I. is allowed to search bookstore and library records with a warrant obtained from the secret FISA court “without even the need to show probable cause of criminal activity or an individual’s connection to a foreign power,” writes Pat Schroeder, President of the Association of American Publishers. “Librarians and booksellers cannot reveal the fact that such a warrant exists and so they cannot defend their right to disseminate, and the right of their patrons to receive, constitutionally-protected materials.”14

Given the very troubling provisions of the Act, this is the least of it.

Congress passed the Foreign Intelligence Surveillance Act (FISA, 1978)15 after the excesses of Federal spying on domestic political groups in the years of the Vietnam war and civil rights movement. Its purpose was to allow gathering of counterintelligence information, not to bring criminal prosecutions. Under the guidance of a team of lawyers from the Justice Department, the F.B.I. would conduct surveillance. But the Act quietly instituted a new judicial layer, by creating a special – that is, secret – court of sitting federal judges who would approve FISA wiretaps in the same way regular judges approve criminal wiretaps.

For the following twenty-four years, the F.B.I. always got its approval of secret wiretaps (perhaps 10,000, rather than the few hundred each year, as was originally supposed), until last May, when the secret FISA court – for the first time, apparently – refused Ashcroft’s request, saying the F.B.I. evidence was defective. The public did not learn about this until August, when the Washington Post published the story.16

The Patriot Act authorizes the reduction of – to the point of nearly eliminating – standard Fourth Amendment protections of any persons subject to criminal investigations, allowing the government to use the less stringent presumptions of intelligence while investigating American citizens.

I will also watch as an increasing number of municipalities17 take a public stand against the Patriot Act. Will that change, now? Let us see.

2. Language and propaganda (the underbelly of language). We have many sources of direct, reliable information now, because of the Internet and the World Wide Web. Regularly, I read or listen to the New York Times, the Washington Post, Ha’aretz, the International Herald Tribune, The Guardian, the CBC, BBC World Service, and other sources.18 I read blogs – web logs; a very fine one is run by Helena Cobban, at Just World News.19 I receive and send information and opinion by e-mail. If I remain eternally vigilant, I may be among those who continue to secure our liberty.

But let me note how vigilant we must remain, with one not untypical example, from a White House briefing by Ari Fleischer on March 20. “Mr. Fleischer disputed the view of Europeans and others who argue that the pending invasion is a violation of the United Nations Charter. He cited three Security Council resolutions that he said provided all of the authorization Mr. Bush needed. But he also likened the current preparations to the Cuban missile crisis in 1962, arguing that just as President John F. Kennedy imposed a quarantine around Cuba – ‘an act of war,’ Mr. Fleischer said – to force Havana to remove nuclear Missiles, Mr. Bush is acting to protect the United States from a threat that it would never see coming.”20

I do not know if the assembled reporters gasped at the untruth of Mr. Fleischer’s statement. I gasp at it, and correct him: a quarantine is specifically not an act of war. That is why President Kennedy did not impose a blockade, which is such an act.

3. How the post-war reconstruction is managed, particularly in regard to the contracts already let to Halliburton, Bechtel and other trans-national corporations.21 (That the Vice-President came to office from Halliburton should have, I would have thought, raised questions before the President began the war.) As I write, it appears that this government intends to continue on its present course, insisting, as Secretary Powell has done to Congress, that the coalition forces – that is America, Britain, and Australia, the three combatants – would remain in control of Iraq post-war. How, and whether, the other members of the United Nations could provide humanitarian assistance and development is unclear. It looks to have become a question, in lesser part, of the distribution of power and the spoils; and, in greater part, of responsibility for the destruction of the country and death and wounding of its citizens.

Compared to the humanitarian crisis, this next point seems almost trivial. The reconstruction of Iraq is related, directly and indirectly, to our energy policies, as well, because of the role those transnational companies play in oil development. The matter will turn on whether our government will allow Iraq, the nation, to control its oil fields.

A few other questions:

4. Who was responsible for bugging the headquarters of the European Union,22 in particular, the offices of the French and German representatives? This was revealed during the week before the war was started, but no responsible party has been found or, at least, named.

5. How the Air Force reports on the recurring incidence of rape of young women at the Academy, and the recurring non-prosecution of culprits.23

6. Cyberwar. After the September attacks, the Administration and Congress, concerned that computers and the Internet are vulnerable to both espionage and crime, organized various commissions to protect and defend aggressively what they often call “cyberspace.” In February of this year, according to the Times, “President Bush has signed a secret order allowing the government to develop guidelines under which the United States could launch cyber-attacks against foreign computer systems…. The United States has never conducted a large-scale cyber-attack, but officials said last month that the unfolding cyber-strategy plan made it more clear than ever that the Defense Department can wage cyber warfare if the nation is attacked.”24

James Gilmore III, director of the Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction (known as the Gilmore Commission) and formerly, Republican governor of Virginia, was interviewed on NPR on March 20. He suggested that we ought to keep two things in mind at the same time: the importance of our civil liberties, and the need for security. He noted that people tend to be more vigilant about liberties when they feel more secure; and suggested that we should recollect that risk is part of life; that we live with a new sort of risk; but that we are an “individualistic, liberty-loving people and would not give up our liberties easily.” He fudged when asked whether the Administration is (as many people think, said his questioner) working to limit our civil rights.

I note that on March 27, al-Jazeera’s Web site was hacked by a group calling itself Patriot Freedom Cyber Force Militia.”25 I draw no conclusions (nor do I mean to imply even faintly that the Gilmore Commission is involved in cyberwarfare) but, being in the business myself, I remain attentive to the breadth of possibility.

My last but most important question is, How will our political speech be limited?

Our genius as a nation is that we are a secular polity formed by a marvelous Constitution, in which the ever-larger inclusion of citizenship has been fought for and won over the last 225 years. Our civil rights, too, have been fought for and won. Are they permanent, however? Although he denied having done so, Robert McNamara had commissioned the writing of a secret history of the Vietnam War. Are secret histories being written now, I wonder; have they been written; and will the Administration’s doctrine of secrecy require another Daniel Ellsberg to bring them to light?

But so much of what lies before us is not secret. The respectable media have reported on when the American drive toward war began; who the advisors responsible for planning it are; and why they thought it necessary to do so. For this very reason, I am deeply concerned about the continued, well-organized expansion of government secrecy, such as the executive order that will keep presidential papers hidden for decades from public scrutiny; and the authority allowing the F.B.I. to examine our most intimate records, without our knowing, on the merest suspicion of some vague possible threat from someone we once sat next to on an airplane; and the rule that authorizes the Immigration and Naturalization Service to track our movements even beyond our borders. A sample of recent headlines tells more of this troubling story:

U.S. to Make Airlines Give Data on Americans Going Overseas”

U.S. Hopes to Check Computers Globally”

“How a Deal Creating an Independent Commission on Sept. 11 Came Undone”

“Grounded: The Government’s Air Passenger Blacklist”

“Government intercepts, confiscates AP reporters’ package – Federal officials opened a package mailed between two reporters and illegally turned the contents over to the Federal Bureau of Investigation”

“Tucson Citizen photographer arrested while shooting campus protest”

“Leaked Bill would increase terrorism action secrecy”26

Last November, according to the Post, “a new Pentagon research office began designing a global computer-surveillance system to give U.S. counterterrorism officials access to personal information in government and commercial databases around the world.” The director of this office, John H. Poindexter, had the weird, shocking authority to collect every electronic record about every American citizen – and, it seems, citizens of other nations, into a national database. Let us not forget: this is the same Admiral Poindexter who was convicted of crimes in the anti-constitutional Iran-Contra arms sales of the Reagan administration.27

We are watching our civil rights vanish before our eyes, in the name of an impossible goal of “security.” Surely, Americans can learn to live with greater risk at home without redefining their nation into the imperial, and frightening, governor of the world.28 Yet at this moment, the accumulated power of the presidency looks monolithic, while the opposition absents itself from the fray. I live in hope that it is still possible to make the political process work for those of us who were in the majority in 2000, and a hair’s breadth away from it in 2002. America is riven by at least two (opposing) theories of power and governance: a doctrine of unilateral power, against a belief in shared sovreignty and multilateral alliances. These political ideas animate our people domestically as well as internationally, and neither side, however bitterly opposed to the other, can claim to love this nation more. No one of us is less a patriot than any other fellow citizen, though our differences be sharp and seem nearly insoluble.

The Israeli journalist Amira Hass, daughter of European Jews who escaped the Holocaust and found refuge in Palestine, now reports from Ramallah. Her colleague Robert Fisk writes about her: “‘There is a misconception that journalists can be objective…. Palestinians tell me I’m objective. I think this is important because I’m an Israeli. But being fair and being objective are not the same thing. What journalism is really about – it’s to monitor power and the centres of power.’”

I am not a journalist, but I think she is right.

March 29, 2003


1 See Leo Tolstoy, “Esarhaddon, King of Assyria,” from STORIES GIVEN TO AID THE PERSECUTED JEWS, at “Leo Tolstoy: Twenty-three Tales”.

2 See President Says Saddam Hussein must leave Iraq within 48 Hours, March 17, 2003 l; “Iraq Ultimatum,” Slate, September 9, 2002 Philip H. Gordon, Martin S. Indyk, and Michael E. O’Hanlon, Brookings Institution ; John Lewis Gaddis, “A Grand Strategy of Transformation,” Foreign Policy; Michael Ignatieff, “The Burden,” New York Times Magazine, January 5, 2003.

3 National Security Strategy of the United States.

The President’s Introduction to the National Security Strategy, September 2003, in which he announced America’s doctrine of preventive strikes: “And, as a matter of common sense and self-defense, America will act against such emerging threats before they are fully formed.” (Ital. added)


The gravest danger our Nation faces lies at the crossroads of radicalism and technology. Our enemies have openly declared that they are seeking weapons of mass destruction, and evidence indicates that they are doing so with determination. The United States will not allow these efforts to succeed. We will build defenses against ballistic missiles and other means of delivery. We will cooperate with other nations to deny, contain, and curtail our enemies’ efforts to acquire dangerous technologies. And, as a matter of common sense and self-defense, America will act against such emerging threats before they are fully formed. We cannot defend America and our friends by hoping for the best. So we must be prepared to defeat our enemies’ plans, using the best intelligence and proceeding with deliberation. History will judge harshly those who saw this coming danger but failed to act. In the new world we have entered, the only path to peace and security is the path of action.

As we defend the peace, we will also take advantage of an historic opportunity to preserve the peace. Today, the international community has the best chance since the rise of the nation-state in the seventeenth century to build a world where great powers compete in peace instead of continually prepare for war. Today, the world’s great powers find ourselves on the same side— united by common dangers of terrorist violence and chaos. The United States will build on these common interests to promote global security. We are also increasingly united by common values. Russia is in the midst of a hopeful transition, reaching for its democratic future and a partner in the war on terror. Chinese leaders are discovering that economic freedom is the only source of national wealth. In time, they will find that social and political freedom is the only source of national greatness. America will encourage the advancement of democracy and economic openness in both nations, because these are the best foundations for domestic stability and international order. We will strongly resist aggression from other great powers—even as we welcome their peaceful pursuit of prosperity, trade, and cultural advancement….

See also,Chronology: The Evolution of the Bush Doctrine,” Frontline

4 A correspondent reminded me that the Mexican War also was a war of aggression. Lincoln spoke out against it in congress and Grant, in his memoirs, said that he thought it was the most unjust war ever waged by a powerful nation against a lesser one.

5 “Preventive” has become the commonly-used term to describe this President’s doctrine, although “pre-emptive” appeared in early reports; the two words have different meanings in international law. See, for instance, Mike Allen and Barton Gellman, “Preemptive Strikes Part of U.S. Strategic Doctrine,” Washington Post, Dec. 10, 2002.

A Bush administration strategy announced yesterday calls for the preemptive use of military and covert force before an enemy unleashes weapons of mass destruction, and underscores the United States’s willingness to retaliate with nuclear weapons for chemical or biological attacks on U.S. soil or against American troops overseas.

The strategy introduces a more aggressive approach to combating weapons of mass destruction, and it comes as the nation prepares for a possible war with Iraq…. (continued)

See also, David E. Sanger, “U.S. Issues Warning to Foes in Arms Plan,” New York Times, December 11, 2002.

See also, Jon Bonne, “Is a U.S. war against Iraq illegal?MSNBC.com, March 20, 2003.

6 Todd S. Purdom, “The Brains Behind Bush’s War,” New York Times, February 1, 2003.

7A thoughtful, scholarly discussion of the legal precedents of restrictions on, and freedom of, speech during wartime occurred at the Virginia Festival of the Book, March 21, 2003. Profs. Henry Abraham, Barbara Perry, and Robert O’Neil offered contrasting perspectives on the past and present right of free speech in wartime. Their discussion is available on streaming audio at VaBook, part 1 (scroll down). This writer was the fourth member of the panel and was asked to offer a current perspective as publisher and editor; those remarks, an earlier version of the present essay, and discussion and questions among the panel, are available on part 2.

8 Among many articles warning about an increase in government secrecy and intrusion into citizens’ affairs was William Safire’s column, “You Are A Suspect,” New York Times, November 14, 2002, which reads, in part:

If the Homeland Security Act is not amended before passage, here is what will happen to you:

Every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every Web site you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book and every event you attend — all these transactions and communications will go into what the Defense Department describes as “a virtual, centralized grand database.”

To this computerized dossier on your private life from commercial sources, add every piece of information that government has about you — passport application, driver’s license and bridge toll records, judicial and divorce records, complaints from nosy neighbors to the F.B.I., your lifetime paper trail plus the latest hidden camera surveillance — and you have the supersnoop’s dream: a “Total Information Awareness” about every U.S. citizen.

This is not some far-out Orwellian scenario. It is what will happen to your personal freedom in the next few weeks if John Poindexter gets the unprecedented power he seeks….

This ring-knocking master of deceit is back again with a plan even more scandalous than Iran-contra. He heads the “Information Awareness Office” in the otherwise excellent Defense Advanced Research Projects Agency, which spawned the Internet and stealth aircraft technology. Poindexter is now realizing his 20-year dream: getting the “data-mining” power to snoop on every public and private act of every American.

Even the hastily passed U.S.A. Patriot Act, which widened the scope of the Foreign Intelligence Surveillance Act and weakened 15 privacy laws, raised requirements for the government to report secret eavesdropping to Congress and the courts. But Poindexter’s assault on individual privacy rides roughshod over such oversight. (continued)

See also, Adam Clymer, “Government Openness at Issue as Bush Holds Onto Records,” New York Times, January 3, 2003.

9 The President Addresses the Nation, March 19, 2003: the opening of hostilities.

10 WashingtonPost.com Live OnLine. Dana Priest, THE MISSION: WAGING WAR AND KEEPING PEACE WITH AMERICA’S MILITARY. New York: Norton, 2003.

11 See, Eric Schmitt, “Bush Ordering Limited Missile Shield,” New York Times, December 18, 2002:

WASHINGTON, Dec. 17 - After nearly two decades of debate over the wisdom and utility of trying to intercept missiles fired at the United States, President Bush today ordered the Pentagon to field a modest antimissile system within two years. If it works, it could intercept a limited attack from a state like North Korea.

Mr. Bush’s decision marked a major turning point in a debate that has consumed Washington and defense organizations since Ronald Reagan first announced plans for a far more ambitious space-based missile shield. A year ago, Mr. Bush withdrew from a treaty signed in 1972 with the Soviet Union that banned such systems; his action today marked the first time the United States had actually moved to field such a system, even though its capabilities are far more limited than proponents once hoped, and its reliability is still in doubt…. (continued)

See also, Michael Wines, “Moscow Miffed Over Missile Shield but Others Merely Shrug,” New York Times, December 19,2002:

MOSCOW, Dec. 18 - Russia warned today that President Bush’s order to field a limited missile-defense system in 2004 had pushed the venture into “a destabilizing new phase,” but here, as in many places, weary shrugs were the dominant response to the American decision, which had long been considered inevitable…. (continued)

Also,Opposition Unlikely for Missile Defense,” New York Times, December 18, 2002.

Also, Katherine McNamara, “The Bear,” Archipelago, Vol. 5, No. 4.

12 See, for example, Adam Clymer, “U.S. Ready to Rescind Clinton Order on Government Secrets,” New York Times, March 21, 2003:

WASHINGTON, March 20 - Making it easier for government agencies to keep documents secret, the Bush administration plans to revoke an order issued by President Bill Clinton that among other provisions said information should not be classified if there was “significant doubt” as to whether its release would damage national security.

The new policy is outlined in a draft executive order being circulated among federal agencies. A final version is expected to be adopted before April 17, when the last elements of the Clinton order would take effect, requiring automatic declassification of most documents 25 or more years old. Under the draft, such automatic declassification would be postponed until Dec. 31, 2006…. (continued)

See also, NCH WASHINGTON UPDATE (Vol. 9, #13; 27 March 2003) by Bruce Craig  National Coalition for History (NCH):

BUSH ISSUES NEW SECRECY EXECUTIVE ORDER On 25 March 2003 President George W. Bush signed a 31-page Executive Order “Further Amendment to Executive Order 12958, As Amended, Classified National Security Information” (EO 13291) replacing the soon-to-expire Clinton-era E.O. relating to the automatic declassification of federal government documents after 25 years. With a handful of exceptions, the new EO closely corresponds to a draft obtained by the National Coalition for History and distributed via the Internet earlier in March (See “Draft Executive Order Replacing EO 12958 Circulates” — NCH WASHINGTON UPDATE, Vol. 9, #11; 13 March 2003).

The announcement of the president’s signing the EO appears to have been carefully orchestrated by the White House to minimize public attention to the new order. One press insider characterized the strategy employed by the White House as “advance damage control.” The administration tactic managed to short circuit a repeat of the public relations disaster that followed the release of the Presidential Records Act EO in 2001. (continued)

See also, “Leahy introduces ‘Restore FOIA’ bill to amend Homeland law. A bill to curb the Homeland Security Act provision criminalizing disclosure of some business-submitted information was introduced in the U.S. Senate Wednesday.

“March 13, 2003 — Sen. Patrick Leahy (D-Vt.) introduced the ‘Restoration of Freedom of Information Act’ today to combat requirements for secrecy in legislation establishing the Department of Homeland Security, which Congress passed in November.” (continued)

Also, Senator Robert Byrd’s Web site.

Also, Adam Clymer, “Government Openness at Issue as Bush Holds Onto Records,” New York Times, January 3, 2003.

13 Senator Russell Feingold, “On Opposing the U.S.A. PATRIOT Act,” Archipelago, Vol. 6, No. 2.

See also, Senator Feingold, “’Confused Justifications and Vague Proposals’: Why I Oppose Bush’s Iraq War Resolution,” Counterpunch, October 10, 2002

14Association of American Publishers and AAP Freedom to Read Committee.

See also, Association of American University Publishers and Books for Understanding the United States at War.

Also, American Library Association Office for Intellectual Freedom.

Also, American Booksellers Foundation for Free Expression, “Saunders Seeks Change in USA Patriot Act to Protect Bookstore Privacy”.

15 The Foreign Intelligence Surveillance Act (FISA, 1978): The passage following is from “America’s Secret Court,” by Paul DeRienzo and Joan Moossy. The article is undated but was written before the September 2001 attacks, and the passage of the USA PATRIOT Act (see Senator Russell Feingold’s speech, cited above) and the recent Homeland Security Act. These laws have only increased the intrusive powers of the Federal government. The passage offers some background.

The roots of FISA lie in the social upheavals that convulsed the country in the 1960s and ‘70s. During that time, countless citizens were drawn into a plethora of political-activist groups, from the civil-rights movement to anti-war organizations. Demonstrations and riots rocked cities and college campuses as Americans began to question seriously the government’s war in Vietnam. The federal government moved quickly to stanch the tide of opposition and social change through a program of dirty tricks and unprecedented violations of personal rights and privacy, often justified as necessary for national security.

The government’s abuse of the Constitution eventually reached its height with the Watergate break-in and subsequent scandal that resulted in the near-impeachment and consequent resignation of President Nixon, who had ordered break-ins, known as black-bag jobs, against his Democratic opponents in the 1972 election. To defend his actions, Nixon argued that the president has an “inherent authority” as chief executive to suspend the Constitution in an emergency. Abraham Lincoln had limited habeas-corpus rights during the Civil War, and Franklin Roosevelt had interned thousands of Japanese-Americans in camps after Pearl Harbor.

Public outrage over Nixon’s abuses led to a 1976 investigation by the Senate Select Committee on Intelligence. Testimony before the committee, which was headed by Senator Frank Church of Idaho, revealed that the nation’s intelligence agencies had consistently ignored and violated the Constitution for more than a quarter century. Among other abuses, the FBI was held responsible for the infamous COINTELPRO counterintelligence program that targeted those whom Hoover and Nixon perceived as political enemies: the Black Panther party, the American Indian Movement, and a host of popular leaders, including the Reverend Martin Luther King, Jr., and Malcolm X. To Senator Church, all this was “one of the sordid episodes in the history of American law enforcement.”

The findings of the Church Committee clearly established that there needed to be strict separation of federal domestic law enforcement from the government’s counterintelligence activities. Ever since passage of the Omnibus Crime Control Act of 1968, electronic surveillance in criminal investigations has required a warrant signed by a judge. But the ‘68 law had left open an exception in cases of national security, a loophole exploited by Nixon and his cronies. As designed ten years later, the primary purpose of FISA was to gather counterintelligence information, not to make criminal prosecutions. Surveillance would be conducted under the guidance of the Justice Department, employing a team of lawyers to work with the attorney general and the FBI An innovation proposed by then Attorney General Griffin Bell created a special court of sitting federal judges who would approve FISA wiretaps the same way judges approve criminal wiretaps.

The main targets of FISA were supposed to be foreign intelligence agents working as part of their country’s diplomatic missions in the United States. Although the U.S. Supreme Court has yet to hear a FISA case, lower courts have ruled that “once surveillance becomes primarily a criminal investigation ... individual privacy interests come to the fore and government foreign-policy concerns recede.” Yet the fact that evidence acquired from a FISA surveillance can be used to make a criminal prosecution has led some critics to charge that the FBI is taking advantage of the law to make arrests…. (continued in six parts)

See also, Eric Lichtblau with Adam Liptak, “On Terror and Spying, Ashcroft Expands Reach,” New York Times, March 15, 2003.

16 Dan Eggen and Susan Schmidt “Secret Court Rebuffs Ashcroft, Justice Dept. Chided On Misinformation,” Washington Post, August 23, 2002.

17 See, “Cities Say No to Federal Snooping (December 19, 2002) ‘Fearing that the Patriot Act will curtail Americans’ civil rights, municipalities across the country are passing resolutions to repudiate the legislation and protect their residents from a perceived abuse of authority by the federal government.’” American Library Association, USA PATRIOT Act

18 See, the New York Times, the Washington Post, Ha’aretz, the International Herald Tribune, The Guardian, the CBC, BBC World Service.

19 Helena Cobban’s Just World News; war blogs; “Where’s Raed,” Salam Pax’s blog from Baghdad. In addition, although hardly a blog, is George Loper’s excellent Web site in Charlottesville, Va., designed as a medium of community discussion on-line.

20 See, John Kifner, “Intense Bombardment of Baghdad Lasts About 10 Minutes,” New York Times, March 20, 2003.

See also, the official White House press briefing log, March 19,2003

Q: Ari, going back to this idea of this being the first preemptive or preventive war. What are other countries to make of this? What about other countries who might seize on this and take their own preemptive action?

MR. FLEISCHER: Well, again, I harken back to what I said about the Cuban missile crisis. And you will have different historians come to different conclusions about different events, but, certainly, in the Cuban missile crisis the United States was not attacked; the United States imposed a quarantine or an embargo, which, as I indicated earlier, people can call an act of war. That has been one of the ways people have looked at it.

21 A report on Halliburton KBR’s long-term employment in the rebuilding of Afghanistan, by Jordan Green, “The Influence of big energy corporations in the Bush administration is no secret,” Institute for Southern Studies Report, was posted Feb. 1, 2002, on Institute for Southern Studies. (The report is no longer posted, but may be available by subscription). Green writes,

Last December [2001], the US Department of Defense made a no-cap, cost-plus-award contract to Halliburton KBR’s Government Operations division. The Dallas-based company is contracted to build forward operating bases to support troop deployments for the next nine years wherever the President chooses to take the anti-terrorism war….

The Pentagon posts all contract announcements exceeding $5 million on its Website, but in Halliburton’s case declined to disclose the estimated value of the award. A spokesperson for Halliburton gave $2.5 billion as the amount the company earned from base support services in the 1990s, acknowledging that the contract value alone could exceed that number assuming that the scope of US military actions widens in the next decade.

Though the Pentagon may be wary of admitting its favor towards Halliburton, the British Ministry of Defence showed no such reticence. In the third week of December 2001, the Defence Ministry awarded Halliburton’s subsidiary Brown & Root Services $418 million to supply large tank transporters, capable of carrying tanks to the front lines at speeds of up to 50 miles per hour….

Halliburton has close contacts with the Bush family. Aside from Cheney, there is Lawrence Eagleburger, a Halliburton director and former deputy secretary of defense under Bush Sr. during the Gulf War.

In its earlier incarnation as Brown & Root Services, the company sponsored Texan and future president Lyndon Johnson’s stolen election to the US Senate in 1948, building the state’s spectacular political-industrial muscle.

As the number-one field services company in the world, Halliburton had an active interest in position itself to exploit the newly-opened oil and gas fields in adjoining Uzbekistan, where the US Army’s 10th Mountain Division already occupies a base.

The Bush Administration’s chief corporate interest is in advancing the fortunes of the energy industry. National Security Advisor Condoleeza Rice is a former board member of Chevron, which has been operating the Tengiz oil fields in neighboring Kazakhstan through the past decade. Commerce Secretary Don Evans is the former chairman of the Denver-based oil firm Tom Brown Inc. Houston-based Enron, whose phenomenal implosion has recently brought critical attention, was the single biggest contributor to the Bush campaign last year….

However, cause-and-effect relationships ought not be supposed, as Lawrence Eagleburger (and his former colleague Gen. Brent Scowcroft) publicly expressed serious doubts about undertaking war with Iraq. See War with Iraq: Scowcroft and Eagleburger Speak at Miller Center Sponsored Forum.

On the other hand, see Pratap Chatterjee, “Halliburton Makes a Killing on Iraq War; Cheney's Former Company Profits from Supporting Troops,” CorpWatch, March 20, 2003.

22 Bugging devices found at EU,” BBC News

23 Robert Gehrke, “Air Force Secretary Reports 54 Cases of Rape, Assault,” Washington Post (AP), March 6, 2003.

Also, continued coverage of the Academy, and matters concerning women and the military

Also, “The War Against Women,” New York Times Editorial, January 12, 2003.

24 See, National Strategy to Secure Cyberspace September 2002

See also, “Bush Signs Directive on Cyber Attacks,” (AP), New York Times, February 7, 2003.

WASHINGTON (AP) – President Bush has signed a secret order allowing the government to develop guidelines under which the United States could launch cyber-attacks against foreign computer systems, administration officials said Friday.

The United States has never conducted a large-scale cyber-attack, but officials said last month that the unfolding cyber-strategy plan made it more clear than ever that the Defense Department can wage cyber warfare if the nation is attacked. (continued)

Also, Bradley Graham, “Bush Orders Guidelines for Cyber-Warfare,” Washington Post, February 6,2003.

President Bush has signed a secret directive ordering the government to develop, for the first time, national-level guidance for determining when and how the United States would launch cyber-attacks against enemy computer networks, according to administration officials.

Similar to strategic doctrine that has guided the use of nuclear weapons since World War II, the cyber-warfare guidance would establish the rules under which the United States would penetrate and disrupt foreign computer systems.

The United States has never conducted a large-scale, strategic cyber-attack, according to several senior officials. But the Pentagon has stepped up development of cyber-weapons…. (continued)

Also, FindLawForum (CNN), “We don’t need a new secret ‘cyber-court’ for hackers.

Also, Gilmore Commission critical of Bush cybersecurity plan,” Computerworld.com

25 See, Hackers bring down al-Jazeera news site

26 Links to headlines:

U.S. to Make Airlines Give Data on Americans Going Overseas

U.S. Hopes to Check Computers Globally

How a Deal Creating an Independent Commission on Sept. 11 Came Undone

Grounded: The Government’s Air Passenger Blacklist

Government intercepts, confiscates AP reporters’ package – Federal officials opened a package mailed between two reporters and illegally turned the contents over to the Federal Bureau of Investigation

Tucson Citizen photographer arrested while shooting campus protest”

Leaked Bill would increase terrorism action secrecy” (the so-called “Patriot II” Bill)

27 See Arthur L. Limon, “Hostile Witnesses,” The Washington Post, August 16,1998.

The Iran-contra scandal burst upon the scene in November 1986 when it was first reported in a Lebanese newspaper that President Ronald Reagan had approved the sale of missiles to Iran in exchange for American hostages in Lebanon. Later, Justice Department lawyers found evidence that proceeds from the arms sales had been diverted to illegally fund the contra anticommunist guerrillas in Nicaragua in circumvention of the Boland Amendment banning U.S. aid to the rebels. It was an audacious, covert scheme – known by its participants as “the Enterprise” – carried out largely by a small group of top administration officials and private operators without the knowledge of Congress. And when it began to unravel, the foremost question congressional investigators faced was the classic one echoing from the days of Watergate: What did the president know and when did he know it?

Arthur L. Liman, a renowned New York corporate lawyer who had been involved in many big-time cases, was brought in as chief counsel for the Senate special committee set up to investigate. Liman helped conduct 40 days of controversial public hearings that made Marine Lt. Col. Oliver North a household name but were inconclusive about Reagan's role. Liman's memoirs, which are being published posthumously next month, recall those days when a president's fate hung in the balance.

Liman died last year before Whitewater metamorphosed into Monicagate, but he almost certainly would have stuck to the view expressed in his memoirs that the high crimes and misdemeanors alleged in Iran-contra posed a far more serious threat to American democracy and our system of checks and balances. Even Watergate – a bungled burglary followed by a White House-orchestrated cover-up – was less threatening, Liman argued. He saw Iran-contra as a deliberate effort to conduct foreign policy in secret by using a private organization motivated by profit and accountable to no one. Whitewater, by contrast, involved mainly pre-presidential financial activities that posed no constitutional issue or question of presidential accountability, according to Liman, who said the country could not afford to incapacitate a president by a drawn-out investigation that questioned his legitimacy…. (continued)

See also, Iran Contra Alumni in Bush Government (AP), March 13, 2002.

28 See Ian Bruce’s brilliant Flash movie, “Technical Difficulties,” on MoveOn.org.

Other sites of interest:

Robert Fisk, “The Keys of Palestine,” Archipelago, Vol. 6, Nos. 3/4. An interview with Fisk from Baghdad, March 25, is on Democracy Now.

“Patriotism and the Right of Free Speech in Wartime.” A panel discussion broadcast on C-Span March 21, 2003, with Profs. Henry Abraham, Barbara Perry, and Robert O'Neil, and Katherine McNamara, Editor and Publisher of Archipelago. Streaming audio of the panel discussion is available at Virginia Festival of the Book  (scroll down).

Thomas Jefferson Center for the Protection of Free Expression

Weapons of Mass Instruction” children’s book list

Republican National Committee

Democratic National Committee

Cato Institute, March 17, 2003

United States at the United Nations: official Web site

Previous Endnotes:

A Year in Washington, Vol. 6, Nos. 3/4

Lies, Damn Lies, Vol. 6, No. 2

The Colossus,  Vol. 6, No. 1

The Bear, Vol. 5 No. 4

Sasha Choi Goes Home, Vol. 5, No. 3

Sasha Choi in America,Vol. 5, No. 1

A Local Habitation and A Name, Vol. 5, No. 1

The Blank Page, Vol. 4, No. 4

The Poem of the Grand Inquisitor, Vol. 4, No. 3

On the Marionette Theater, Vol. 4, Nos. 1/2

The Double, Vol. 3, No. 4

Folly, Love, St. Augustine, Vol. 3, No. 3

On Memory, Vol. 3, No. 2

Passion, Vol. 3, No. 1

A Flea, Vol. 2, No. 4

On Love, Vol. 2, No. 3

Fantastic Design, with Nooses, Vol. 2, No. 1

Kundera’s Music Teacher, Vol. 1, No. 4

The Devil’s Dictionary; Economics for Poets, Vol. 1, No. 3

Hecuba in New York; Déformation Professionnelle, Vol. 1, No. 2

Art, Capitalist Relations, and Publishing on the Web, Vol. 1, No. 1

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