The Real Cost of Prisons Weblog

This week, it was Pyle's turn to be stunned.

Now a professor of politics at Mount Holyoke College and a civil liberties expert, Pyle said President Bush's admission he authorized the National Security Agency in 2002 to eavesdrop on the international telephone conversations and emails of U.S. citizens without consulting a special intelligence court was a clear violation of federal law.

'In so doing, the president became the first president in history to admit to a felony,' he said Tuesday. 'It is an extraordinary, breathtaking assertion, (and) not one I think the Supreme Court will accept.'

Across the Valley, academics and activists described the growing scandal - along with recent reports of Pentagon surveillance of domestic anti-war groups - as a potential turning point for a war-weary American public.

'It will help people understand how little we've had in terms of checks and balances in recent years,' said Nancy Talanian, co-director of the Bill of Rights Defense Committee of Northampton. 'I think it will enrage and engage all sorts of people.

'Mission creep'

Under the 1978 Foreign Intelligence Surveillance Act, electronic spying may be conducted on U.S. soil only with permission from a secret, 11-member court. That law is the 'sole authority' for such activities, said Pyle, who testified and served as a consultant for the Church Committee, a special Congressional panel that held hearings on intelligence reform in the late 1970s.

The law includes a provision allowing the government to conduct surveillance for up to three days before gaining a warrant from the court. That aspect of the law was a nod to arguments the government must act quickly to gather national security intelligence.

'I testified against the statute, but that was the compromise that was worked out,' he said.

Pyle said he would have preferred a constitutional amendment to authorize such activities. 'The focus was going to be on foreign spies, that was what we were assured,' he said.

But recent revelations show intelligence agencies have gone beyond that mandate in tracking anti-war groups and listening to American telephone conversations without showing a court any evidence of spying, in a classic case of 'mission creep,' Pyle said. 'The question is, can the president override a statute of Congress?'

Bush administration officials this week said another federal law passed in 2001 - the single-sentence authorization 'to use all necessary and appropriate force' against nations, organizations or individuals determined to have been connected to the Sept. 11 terrorist attacks - included the authority to engage in domestic electronic surveillance.

But the Los Angeles Times reported Tuesday that officials had also expressed concerns over the legal standard established by the Foreign Intelligence Surveillance Act of 1978.

The secret court created by that act requires the government to show 'probable cause' the target is working for a foreign power or involved in terrorism. Officials spoke of the 'inefficiencies' of that approach, and opted in 2002 for a less stringent standard in which National Security Agency officers would decide whether they had a 'reasonable basis' to suspect terrorist links, the paper said.

Area legal experts said the administration took an ill-advised legal shortcut in bypassing the FISA Court.

'These are, to put the best possible spin on it, creative arguments,' said David Mednicoff, an assistant professor of legal studies at the University of Massachusetts.

Mednicoff said Congress had neither discussed nor explicitly endorsed expanded domestic surveillance powers when it granted the president the authority to use force in the war on terrorism.

Sheldon Goldman, a professor of political science at UMass, said the framers of the Constitution never envisioned a system in which one branch of the government could be granted autonomy over the other two. He said the news of domestic surveillance without explicit Congressional or court authority shows a fundamental imbalance of powers that could lead to a constitutional crisis.

'Of course, there are enemies, there are terrorists,' Goldman said. 'But (domestic surveillance) is not the battlefield, and even on the battlefield, there are certain rules.'

Dirty tricks

For Ekueme Michael Thelwell of Pelham, a former civil rights worker who served in the 1960s as field coordinator for the Student Nonviolent Coordinating Committee, this week's news recalled his first experience with government surveillance.

FBI agents went far beyond wiretapping between 1956 and 1971 under the leadership of J. Edgar Hoover, with agents planting false media stories and documents in an effort to discredit activists and instigate violence with the civil rights movement, Thelwell said, citing COINTELPRO documents.

'I know there's an FBI file (on me,)' said Thelwell, now a UMass professor of Afro-American studies and an editor of Stokely Carmichael's autobiography. 'I have seen documents in which my name was mentioned. And always inaccurately.'

He said he'd seen no evidence of a 'dirty tricks' campaign in the Bush administration's current surveillance program, but said its decision to circumvent the FISA Court - as well as its flawed justification for the war in Iraq - suggested a similar level of carelessness.

'It's less wickedness than it is incompetence,' Thelwell said. 'But to have that kind of incompetence in this government is a terrifying prospect.'

More than 35 years later, the lessons of that 1970 scandal are still relevant, said Thomas Hilbink, assistant professor of legal studies at UMass.

'What was so scandalous about COINTELPRO was that the FBI was ignoring the law,' he said. 'What the Bush Administration is arguing now is that it should never have to go to a judicial authority (for wiretapping warrants.)'

Lois Ahrens of Northampton, an activist who protested U.S. military involvement in Central America in the 1980s, sued the federal government in 1990 in an attempt to see her FBI file after she discovered the agency had apparently infiltrated her group.

But a federal magistrate ruled that national security concerns, or possibly the identity of an FBI agent or source, forbade its release. Ahrens has never learned the contents of the file, or the reasons for her surveillance.

'They were afraid of jeopardizing their sources, who are probably people who are known to us,' she said. The government never accused her of illegal acts. 'At the time, we were standing on the street corner and leafleting, things that were boring, really.'

For Ahrens, this week's news served as a reminder of a turning point in her life, when she learned her government considered her a threat.

'To me, it has never stopped,' she said. 'Since then, I'm aware that this is part of my political history, my personal history.'