In mid-December, President Bush admitted to having committed at least 30 federal crimes by having issued an executive order authorizing the National Security Agency to intercept the international communications of people, including "United States persons," with known links to Al Qaeda and related terrorist organizations, and renewing that order, according to one report, more than 36 times. Each renewal could be considered by a court to constitute a separate crime.
The Foreign Intelligence Surveillance Act (FISA) of 1978, a law passed in response to public outrage over the extent of domestic spying during the Kennedy, Johnson and Nixon administrations, establishes the legal means by which government agents may obtain warrants for electronic surveillance (wiretaps) to, in the words of the statute, "obtain foreign intelligence information." However, the statute only allows such surveillance when "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."
A "United States person" is defined under this Act as "a citizen of the United States; an alien lawfully admitted for permanent residence; an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power."
The USA PATRIOT Act changed FISA slightly by allowing the sharing of information between state and federal prosecutors and law enforcement personnel and intelligence agencies, as long as the information shared is "foreign intelligence information." However, neither the PATRIOT Act nor any other congressional legislation has authorized FISA to issue warrants whose targets are United States persons.
But the FISA authority to issue warrants barely enters into the current situation: President Bush's order allows warrantless searches of, among others, United States persons — exactly the situation the FISA law was enacted to prevent, and a situation that the PATRIOT Act did not change.
Both the president and his advisors have claimed various rationales under which the president could legally issue such an order.
In a statement on Dec. 19, Attorney General Alberto Gonzales said that, "Our position is that the authorization to use military force which was passed by the Congress shortly after Sept. 11 constitutes that authority," and indeed, FISA provides for emergency surveillance "following a declaration of war by the Congress."
One problem: Congress has never formally declared war — on Iraq, on terrorism, on drugs or on any other country or concept since FISA was enacted — and under the Constitution, only Congress can declare war. Moreover, "U.S. persons" would still be exempt from any legal order.
In a Dec. 19 press conference called by President Bush, one reporter noted that, "according to FISA's own records, it's received nearly 19,000 requests for wiretaps or search warrants since 1979; rejected just five of them. It also operates in secret so security shouldn't be a concern. And it can be applied retroactively. Given such a powerful tool of law enforcement is at your disposal, sir, why did you see fit to sidetrack that process?"
It was a key question, since it correctly noted that under FISA, a wiretap can be put in place, and permission to do so obtained after-the-fact. Yet neither the administration nor the National Security Agency applied for any ex post facto warrants, thereby turning a possibly legal act into a clearly illegal one.
Bush's response was to claim he already had the authority to order the taps without any consideration of FISA.
"As president and commander in chief," Bush said at the press conference. "I have the constitutional responsibility and the constitutional authority to protect our country. Article II of the Constitution gives me that responsibility and the authority necessary to fulfill it."
Article II of the Constitution only provides that a president may "grant reprieves and pardons for offenses against the United States"; make treaties and nominate and appoint "ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for" as long as two-thirds of the senators concur. He can also make recess appointments to many of those same positions, but that's it as far as his constitutional power goes.
"What the president would say is, there are implied powers of the commander in chief that enable this to be done," claimed conservative columnist George Will on ABC's "This Week With George Stephanopoulos." "This president, however, has asserted a capacious doctrine of executive power and the war powers, and it's literally unlimited, and it's hard for me to believe that's true."
At press time, there had been no outcry from religious conservatives challenging whatever "implied powers" the president has claimed as part of his role as "commander in chief" of the military — perhaps because they spent much of 2005 whining about unconstitutional "activism" on the part of federal judges.
So what does this all mean, and what impact might it have on the adult industry?
For one thing, it means that the president has bypassed both Congress and the federal courts, and arrogated what one reporter described as "dictatorial power" to himself that the Constitution does not bestow.
"This administration feels it's above the law, and the American people and our Constitution pay the price," Sen. Edward Kennedy (D-Mass.) said on the Senate floor. "This is Big Brother run amok."
"I don't want to hear again from the attorney general or anyone on this Senate floor that this government has shown it can be trusted to use the power we give it with restraint and care," add Sen. Russ Feingold (D-Wisc.).
"The scary thing is that there's no checks and balances," said a former senior intelligence official, who left the government in 2003. "And if you can ignore the FISA law, what else can you ignore?"
Bush had bristled at exactly that during the press conference, when one reporter asked, "I wonder if you can tell us today, sir, what, if any, limits you believe there are or should be on the powers of a president during wartime? And if the global war on terror is going to last for decades, as has been forecast, does that mean that we're going to see, therefore, a more or less permanent expansion of the unchecked power of the executive in American society?"
Bush responded, "First of all, I disagree with your assertion of unchecked power. There is the check of people being sworn to uphold the law, for starters. There is oversight. We're talking to Congress all the time. And on this program to suggest there's unchecked power is not listening to what I'm telling you. I'm telling you we have briefed the United States Congress on this program a dozen times."
There's a huge difference, however, between briefing legislators and having those legislators enshrine those actions in law.
But the bottom line is much more grim.
"If a president can break any law he wants, even with the best of motives, I must tell you, that's the way the Iraqis used to suffer, and it's not the way we Americans do it," noted journalist Sam Donaldson on "This Week." "What law couldn't he break if he thinks it's important?"
It's a question that every adult industry member needs to ask. Are industry members satisfied that all conversations, phone calls, e-mails and financial transactions of which they're a part are completely above governmental scrutiny; that no part of them could be construed as an illegal act or part of a conspiracy to, say, distribute obscenity?
Jan LaRue, chief counsel for Concerned Women for America, a religio-reactionary group, has already described adult producers as "terrorists," and since there is no legal definition of that word, nothing stops the government, already no friend of the adult industry, from adopting that term and running with it in secret, past FISA and right into industry computers, phone lines and bank records.
At press time, no member of Congress had suggested that the president's order was tantamount to an impeachable act — but if President Clinton's lies about his sexual relationship with a willing intern did rise to that standard, how is it possible that President Bush's admitted violations of the law do not?
