JURIST Guest Columnist Brian J. Foley of Florida Coastal School of Law says that the greatest threat posed by President Bush's domestic surveillance program is not to the privacy of ordinary Americans but rather to the independence of potential political rivals, journalists, and activists who would balance, constrain or oppose executive power…

Most of the complaints about President Bush authorizing NSA phone taps without a warrant focus on the ethereal right to privacy, such as when the New York Times editorialized against spying on “ordinary Americans", and the ACLU warned, “Just knowing that the government is spying without cause on innocent Americans sends a chilling message to all of us that our conversations are not our own.” The predominant fear seems to be that people who have nothing to do with terrorism might be mistaken for terrorists and subjected to intrusive surveillance. This is the thrust of the lawsuits that the ACLU [PDF complaint] and the Center for Constitutional Rights [PDF complaint] have filed to stop the spying.

The most important issue is not, however, whether people feel comfortable talking on the phone or sending emails. The real danger is that electronic surveillance can be used to increase and solidify executive power. A president can collect private information not simply about “ordinary Americans,” but extra-ordinary ones — political rivals, journalists, and activists — and use this information against them. After all, if a president is convinced he is right, he may well view those who disagree with him as dangerous and believe it’s legitimate to use any means available to stop them.

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Americans were treated to an extensive description of such abuse 30 years ago, in the aftermath of President Nixon’s harassment of political enemies. A Senate committee chaired by Senator Frank Church of Idaho focused on the activities of several administrations and revealed that officials spied to learn opponents’ plans and to stay a step ahead, to feed opponents’ private information to the press to discredit them, and to blackmail them.

The danger that information gathered through the Bush Administration’s ongoing surveillance program could be used in this way was recently raised by former CIA analyst Ray McGovern in a recent Counterpunch article. Unfortunately, this danger has not yet become a part of our national discussion. It should be. McGovern asks, for example, whether the president could hypothetically use private information to blackmail Senator Arlen Specter (R-PA) into deciding not to hold Judiciary Committee hearings to investigate presidential spying.

The danger is even more frightening, however, than McGovern’s brief example suggests. Let’s amplify his point and look at a few other scenarios showing how even a well-intentioned president, believing that he’s acting in the national interest, could neutralize opponents:

• A Senate vote on a controversial presidential appointee is coming up. Administration officials rummage through taped calls from the homes of the politicians who might vote against their nominee. They discover that — take your pick — one of the opponents: has a serious health problem he’s trying to hide; is having an extramarital affair; is in psychotherapy; has a spouse brokering less-than-kosher commercial deals; has a daughter who just had an abortion (perhaps unbeknownst to her parents). Someone from the Administration casually informs the opponent that this bombshell could be publicized if the opponent “pushes too hard” against the nominee. The opponent might simply ask easy questions of the nominee at Senate hearings, or let him off the hook when the questioning gets intense.
• An investigative reporter digs up controversial, perhaps even illegal, activities by the Administration. Administration wiretapping reveals that the reporter has nothing to hide — but that one of the editors at the newspaper the reporter writes for does. A short phone call mentioning the private matter and asking for “cooperation” in dealing with the reporter works wonders. The story never runs. Or, it runs long after it can do any serious harm, such as after an election.
• A candidate is running against the president in an election … Instead of publicly revealing anything scandalous and causing him to quit the race, the president simply lets him know that, well, he knows. The president doesn’t let the rival quit but keeps him in the race, hobbled, afraid of disclosure. Result: He won’t campaign very hard against the president. He won’t challenge close election results.

It would be almost impossible for the administration to get caught: it’s doubtful that the targeted politician or editor would run to the police, or convene a press conference to announce, “The president has threatened to tell you all that I have a drug problem.” The public might wonder why its politicians and journalists aren’t fighting harder or asking tougher questions, but people — if they notice at all — may simply dismiss the apparent lassitude as “spinelessness.”

So why isn’t the danger that the president could easily blackmail opponents part of our national discussion of the spy program? Perhaps it’s too frightening to contemplate. History, however, says that we must take a hard-nosed look at how people with particular motivations are likely to act when they have the means and opportunity. The words of the Church Committee’s report bear repeating:

Electronic surveillance of persons involved in the domestic political process, such as Congressmen, lobbyists, and Congressional aides, also raises special problems. Information is often the key to power; and the ability of high executive officials to use electronic surveillance to obtain information about their political opponents can give the President and his aides enormous influence. Apart from violating the rights o
f the surveillance targets, wiretapping and bugging on behalf of the President's political interests destroys the Constitutional system of checks and balances designed to limit the exercise of arbitrary power.

Electronic surveillance has been used to serve the interests of Presidents in almost every political arena; it has been a resource for executive power that has tempted administrations of both political parties. Officials succumbed to the temptation with a consistency which demonstrates the immense danger of vesting authority over the use of such techniques solely within the Executive Branch.

Senate Select Comm. to Study Governmental Operations With Respect to Intelligence Activities, Final Report: Intelligence Activities and the Rights of Americans, S. Rep. No. 755, 94th Cong., 2d Sess., Bk. III, Pt. VII (A)(4) (1976)

The virtually undetectable abuses that can result from presidential spying pose an enormous and immediate threat to the viability of our government. Although the issue generally has been framed as a legal issue, perhaps to be decided ultimately by the Supreme Court — while the present administration continues surveillance under its more than four-year-old program — we must recognize that presidential spying is first and foremost a political issue. Congress should not wait for the courts to determine whether the president has broken the law but should act immediately to stop the spying — before this or any future president renders his opponents too scared to do anything but submit to his will.