Wednesday, January 18, 2006

Hitchens Takes On the NSA

According to yesterday's New York Times, the ACLU and the Center for Constitutional Rights have each filed suit against the National Security Agency "to determine whether the [domestic spying] operation was used to monitor 10 defense lawyers, journalists, scholars, political activists and other Americans with ties to the Middle East."

FOX News was all over the story this morning on a not-so-friendly FOX & Friends denouncing the suits and howling that the plaintiffs "can't prove" they were spied on. Perhaps FOX producers rushed to the story without their usual dose of morning caffeine, because it is plain from the Times article and from comments made by the ACLU that the purpose of the suit is to determine if such spying went on, not to contend that it did. To wit:
The lawsuits seek to answer one of the major questions surrounding the eavesdropping program: has it been used solely to single out the international phone calls and e-mail messages of people with known links to Al Qaeda, as President Bush and his most senior advisers have maintained, or has it been abused in ways that civil rights advocates say could hark back to the political spying abuses of the 1960's and 70's? "We don't have any direct evidence" that the plaintiffs were monitored by the security agency, said Ann Beeson, associate legal director for the A.C.L.U. "But the plaintiffs have a well-founded belief that they may have been monitored..." (Emphasis added by Captain Obvious.)
There you have it. The ACLU, in their own statement, note that the plaintiffs all have considerable contact via phone and email to people in the Middle East. "Because of the nature of their calls and e-mails, they believe their communications are being intercepted by the NSA under the spying program. The program is disrupting their ability to talk with sources, locate witnesses, conduct scholarship, and engage in advocacy." It is unclear at this point what exactly constitutes the plaintiffs' "well-founded" belief that they are being spied on. That would ostensibly come out in court proceedings, but there is a distinct possibility that these suits will never see the inside of a courtroom, particularly as Bush stacks the courts with unabashed fans of presidential prerogative.

The ACLU suit is of particular interest to me because my old professor, journalist Christopher Hitchens, is named as a plaintiff. (The other plaintiffs are Larry Diamond of the Hoover Institute, NYU professor and Afghanistan expert Barnett R. Rubin, American Prospect senior editor Tara McKelvey, the National Association of Criminal Defense Lawyers, the Council on American-Islamic Relations and, for some reason, Greenpeace.)

This nip at the heels of the administration will come as a surprise to a lot of people who think that Hitchens, because of his support for both the Iraq war and the invasion of Afghanistan, has turned into a loony White House lapdog like Norman Podhoretz did during the Reagan administration. It's refreshing (and instructive for those of you who may have made snap judgments) to see Hitchens take a stand clearly demonstrating that his loyalties are tied to effecting real, positive change in the Middle East, and not to this administration in particular. He spells it out in a statement on the ACLU's website.
Although I am named in this suit on my own behalf, I am motivated to join it by concerns well beyond my own. I have been frankly appalled by the discrepant and contradictory positions taken by the Administration in this matter. First, the entire existence of the NSA's monitoring was a secret, and its very disclosure denounced as a threat to national security. Then it was argued that Congress had already implicitly granted the power to conduct warrantless surveillance on the territory of the United States, which seemed to make the reason for the original secrecy more rather than less mysterious. (I think we may take it for granted that our deadly enemies understand that their communications may be intercepted.) This makes it critically important that we establish an understood line, and test the cases in which it may or may not be crossed.
This has always been the sticking point for me. Terrorists know they may be monitored. In fact, they know the US government will go to great lengths to monitor them. Why, then, such secrecy over the existence of the NSA program? It makes a lot more sense if the program is designed to cast its net far wider than Al Qaeda associates in the US—and far wider than the public would tolerate.
We are, in essence, being asked to trust the state to know best. What reason do we have for such confidence? The agencies entrusted with our protection have repeatedly been shown, before and after the fall of 2001, to be conspicuous for their incompetence and venality. No serious reform of these institutions has been undertaken or even proposed.... The better the ostensible justification for an infringement upon domestic liberty, the more suspicious one ought to be of it. We are hardly likely to be told that the government would feel less encumbered if it could dispense with the Bill of Rights. But a power or a right, once relinquished to one administration for one reason, will unfailingly be exploited by successor administrations, for quite other reasons. It is therefore of the first importance that we demarcate, clearly and immediately, the areas in which our government may or may not treat us as potential enemies.
It is increasingly clear that the Bush administration's definition of an "enemy" is anyone who disagrees with them. Therefore, it is particularly important that someone like Christopher Hitchens, who can hardly be described as a knee-jerk critic of the administration, has attached his name to this lawsuit. It will be interesting to how this plays out in right-wing pundit land. Bush sycophants will either need to maintain that no untoward domestic spying occurred, or they'll have to argue that it's no big deal (like they did with torture, once the evidence became insurmountable). I fully expect the right to attempt to portray Hitchens as an attention-seeking, unstable alcoholic, just like the left did after l’affaire Sid Blumenthal. Just don't forget that ad hominem attacks tell you more about the desperation of the attacker than they do about the target. For now, there is plausible deniability on the right. If the claims in these lawsuits are backed up with evidence, then we'll see who's on the side of truth and, more importantly, who's not.
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