President Bush’s ringing defense during his Saturday radio address of his executive order permitting the National Security Agency to spy on American citizens without obtaining a warrant (a clear violation of federal statute) is full of fatuousness and disingenuous statements.
He claims that he was acting to protect Americans from terror. Further, he says that the wiretaps were directed against terrorists. What he neglects to say is that this illegal spying was conducted on AMERICAN CITIZENS. He claims that the wiretaps could only be conducted if there was evidence that the snooping victim was an adherent of a terrorist cause:
Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.
The NY Times article exposing the NSA program makes clear that the NSA needed to produce no such “information” in order to snoop. It merely decided to do so and whatever criteria were used (if any) and the identities of the authorizers of the wiretaps are still secret. If the NSA needed to “prove” these individuals were terrorists as Bush claims, he’s going to have to show proof that there were rules and that evidence (again, if any) was produced to confirm that the victim was a terrorist.
Bush claimed a number of times that he acted fully in accordance with the Constitution in authorizing the snooping:
As president, I took an oath to defend the Constitution and I have no greater responsibility than to protect our people, our freedom and our way of life…
To fight the war on terror, I’m using authority vested in me by Congress, including the joint authorization for use of military force, which passed overwhelmingly in the first week after Sept. 11. I’m also using constitutional authority vested in me as commander in chief.
In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations…
The authorization I gave the National Security Agency after Sept. 11… is fully consistent with my constitutional responsibilities and authorities…
This authorization is a vital tool in our war against the terrorists. It is critical to saving American lives. The American people expect me to do everything in my power under our laws and Constitution to protect them and their civil liberties. And that is exactly what I will continue to do so long as I’m the president of the United States…
You’ll notice that nowhere does he quote chapter and verse within the Congressional authorization or the Constitution itself for specific justification of his action. Perhaps the reason he doesn’t enumerate his evidence is that most reasonable people would laugh it out of the box. His justification is a figment of a true-blue spook’s imagination. Only a John Yoo, John Ashcroft, Dick Cheney or a George Bush could look you in the eye with a straight face and make such preposterous claims. And if they are not preposterous why has Bush run from every opportunity to test his hare-brained constitutional theories out in a real court of law?
I think it would be instructive for someone spied against to sue the government over this program. Better yet why not have a class action lawsuit on behalf of all who were spied against? Of course, a little problem blocks such a great idea. The identities of those spied on are a state secret and revealing this information would endanger American lives (this is what Bush would say anyway). Ludicrous.
The Times makes clear that the government officials who ratted out the NSA program were concerned that every piece of good intelligence information gleaned from this program would be tainted and unusable in a court of law. They also feared that any prosecutions arising out of such intelligence would be damaged beyond repair by such illegally obtained evidence. Instead of making Americans safer as Bush claims, potentially he has made Americans less safe because any real terrorist revealed by the snooping would not be prosecutable. And anyone who doubts that this would be the eventuality hasn’t been paying attention to the string of defeats suffered by the Bush Administration before the Supreme Court in cases involving “enemy combatants” held in U.S. prisons. Even the conservative majority of the Court views its claims highly skeptically.
It’s also quite laughable that Bush is enraged by his own government officials (probably including a few NSA snoops themselves since the Times article makes clear that some within the agency have concerns about the program):
Yesterday, the existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have.
And the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies and endangers our country.
It is outrageous for Bush to express outrage at the leakers “illegal” acts while ignoring his own end-around the Constitution. Calls for an investigation of their leak are preposterous and will go nowhere. Virtually every American except Bush’s diehard coterie would call these people heroes for blowing the whistle on a program so blatantly in violation of the Constitution and federal law.
It’s terribly amusing in a dark way that Bush attempts to use the 9/11 Commission (which he opposed, remember?) as a fig leaf to justify his misdeeds:
As the 9/11 Commission pointed out, it was clear that terrorists inside the United States were communicating with terrorists abroad before the Sept. 11 attacks. And the commission criticized our nation’s inability to uncover links between terrorists here at home and terrorists abroad.
Yes, it is true the Commission said those things. But NOWHERE did the Commission say the president should be authorized to psy on American citizens within the United States without a warrant. And I’m hoping that Gov. Keane and Lee Hamilton will “school” Georgie on that count. He’s abusing a perfectly fine Commission effort in order to protect what little shred of political, legal or constitutional legitimacy he has left.
Bush claimed in his radio address that the U.S. Patriot Act renewal is needed now more than ever:
The House of Representatives passed reauthorization of the Patriot Act, yet a minority of senators filibustered to block the renewal of the Patriot Act when it came up for a vote yesterday. That decision is irresponsible and it endangers the lives of our citizens.
The senators who are filibustering must stop their delaying tactics and the Senate must vote to reauthorize the Patriot Act.
In the war on terror we cannot afford to be without this law for a single moment.
What the poor benighted soul doesn’t understand is that his actions have probably cost him the entire act. If he really wanted renewal he wouldn’t have gone on such a binge violating the laws and founding documents of our nation. What senator in their right mind would vote for even the compromise that senators were attempting to eke out before this bombshell hit? They’ll have to take a whole new look at the legislation and ferret out any portions that would tend to allow the type of fishing expedition which Bush authorized with his executive order.
There is, however, one passage in his address which is legitimate and accurate and must be addressed by the legislative branch:
Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it.
So far we know that John Rockefeller and Nancy Pelosi claim they expressed concerns after such briefings. But I’m afraid they need to be more forthcoming. We need to know what they did and said in expressing such reservations. We also must hear from Republican leaders who were briefed. And members of their own party should be demanding this accounting as we Democrats should be demanding it of our party’s leaders. I note that as of this writing Harry Reid has refused to make any statement at all about his own involvement. It sure does make you wonder why he seems to be stonewalling. What have you got to hide, Harry?
Rockefeller’s predecessor as ranking member of the Senate Intelligence Committee, Bob Graham has been the only legislator briefed who’s spoken in detail about his recollection of the briefings:
Bob Graham…said in interviews Friday night and yesterday that he remembers “no discussion about expanding [NSA eavesdropping] to include conversations of U.S. citizens or conversations that originated or ended in the United States” — and no mention of the president’s intent to bypass the Foreign Intelligence Surveillance Court.
“I came out of the room with the full sense that we were dealing with a change in technology but not policy,” Graham said, with new opportunities to intercept overseas calls that passed through U.S. switches. He believed eavesdropping would continue to be limited to “calls that initiated outside the United States, had a destination outside the United States but that transferred through a U.S.-based communications system.”
Graham said the latest disclosures suggest that the president decided to go “beyond foreign communications to using this as a pretext for listening to U.S. citizens’ communications. There was no discussion of anything like that in the meeting with Cheney.”
The same Post article quotes the government’s response to Graham:
The high-ranking intelligence official…said Graham is “misremembering the briefings,” which in fact were “very, very comprehensive.” The official declined to describe any of the substance of the meetings, but said they were intended “to make sure the Hill knows this program in its entirety, in order to never, ever be faced with the circumstance that someone says, ‘I was briefed on this but I had no idea that — ‘ and you can fill in the rest.”
By Graham’s account, the official said, “it appears that we held a briefing to say that nothing is different . . . . Why would we have a meeting in the vice president’s office to talk about a change and then tell the members of Congress there is no change?”
If this jackass thinks that his last sentence is incontrovertible proof of his contention that Congress was fully apprised of this program, then he’s a fool. No one in their right mind in this country would ever trust that Dick Cheney would invite members of Congress to a meeting in his office in order to be fully truthful with them about anything.
I’m gratified that Republicans like Walter Jones of North Carolina have called Bush’s order a constitutional violation. While this scandal is political, the more bi-partisan support there is demanding its immediate shutdown, the better off the nation will be. No doubt, the Republican Congressional counterattack is coming. It will be a full-tilt apologia full of vicious smears against critics in Congress. But if a few Republicans privately put Bush on notice that they won’t stand for it, then Bush is going to have to eat crow and end this travesty now.
I’m pleased also that Arlen Specter has called for an investigation. While I don’t agree with his politics, I know him to be a senator deeply steeped in maintaining checks and balances and preserving the legislative branch’s prerogatives. He cannot take this program lightly. My hope is that Specter will not stop with the ending the program itself. This order was a crime eligible for the term “high crimes and misdemeanors.” That means impeachable offense. I’m waiting for the first member of Congress to use the ‘I’ word. It’s only a matter of time.
Finally, I’m stupefied with Bush’s defiant statement that he stands by the NSA program and plans to continue it “as long as I am president.” He doesn’t realize that more than this specific program is on the line. Potentially, his entire presidency is on the line with this authorization. The longer he rants “Nyet” to the Congress on this issue the closer we come to impeachment. This was precisely the type of truculence that got Nixon into hot water. He thought he could fire Archibald Cox and get away with it. Instead, it was the last straw and impeachment became all but inevitable because Congress realized they had a President who had run amok. There is no doubt in my mind that George Bush is the latest incarnation of President Run Amok.
Generally, the Foreign Intelligence Surveillance Act (FISA) requires a warrant for the monitoring of U.S. persons on U.S. soil, but does not necessarily require a warrant for monitoring agents of foreign powers in similar circumstances. Keep in mind, this is intelligence monitoring, not wiretapping the phones of your local mafia hoodlums.
According to 50 U.S.C. 1801, the definitions section of FISA, an agent of a foreign power is:
b(1) any person other than a United States person, who—. . .
acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States
(b)(2) any person who. . .knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power. . . [or who] knowingly aids or abets any person in the conduct of activities described [herein].
Note that there are two categories – intel agents of foreign powers, and terrorism agents of foreign powers. U.S. persons cannot be subjected to warrant-less monitoring under FISA in the traditional intelligence context. In stark contrast, U.S. persons who are engaged in terrorist activities (broadly defined, admittedly a civil liberties concern) may be defined as an agent of a foreign power. This is so because FISA clearly and unambiguously protects U.S. persons in one subsection discussing the pure intelligence context, yet in a parallel section relating to terrorism extends the definition of agent of a foreign power to “any person” – in other words there are strong textual and structural arguments that show the Congress believes that U.S. person status is irrelevant in the counterterrorism context. This is not the atrocity under the 4th Amendment that it might seem to be; the keystone of all 4th Amendment tests is reasonableness, and the Court hasn’t exactly examined this particular question in any great depth, so Congress was basically free to speak it’s mind on this issue.
The power to monitor without warrant under FISA, even for U.S. persons involved in terrorism, is not unfettered.
In addition to existing restrictions under Executive Order 12333 and other internal limits, FISA states in 50 U.S.C. 1802 that, “the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 . . .”
Got that? The definitions portion of FISA (sec. 1801) defines an agent of a foreign power to include people believed to be involved in terrorist operations, regardless of U.S. person status – a broader classification than the traditional pure intel definition of agent of a foreign power. The Act then goes on to provide for a presidential and AG certification / approval process for monitoring the communications of such persons – which sounds a lot like what Bush was describing in his speech today. There are also procedures for notifying the courts and congressional overseers – two other procedures Bush invoked in his speech.”
It’s interesting (and revealing) to note that apparently (need to qualify these things) the Clinton Administration agreed with your general reading of FISA and with this Bush policy.
In a 2000 US district court decision (US vs Bin Laden)
the Clinton Administration argued, inter alia, that for intelligence gathering purposes that the government may monitor communications of foreign agents without a search warrant.
See in particular, Section II, entitled:
“An Exception to the Warrant Requirement for Foreign Intelligence Searches”
In this ruling cited above, we see the following important passage:
“Circuit courts applying Keith [that’s the FISA law] to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the United States that target foreign powers or their agents.”
Richard Silverstein says
I’m not an attorney and so found it hard to follow your argument. I can’t tell whether you were merely expounding on points in my post or disagreeing with my argument. I’d find it easier if you could distill this comment into a clear cut summary.
Are you arguing essentially that FISA does not require warrants for U.S. citizens who are defined as agents of a foreign power?
From what I could follow I’d say this–you speak mostly about FISA and my posts about the NSA scandal don’t deal w. FISA per se (except as I compare it to Bush’s presidential order). While I have serious problems w. the secrecy involved in FISA related judicial decisions, the NSA situation is a pure & utter disaster.
My problem with the NSA program is that there were no defined criteria for who would be monitored until Bush got wind of the NYT article last yr. Only then did they get around to creating some oversight of the program with criteria for monitoring. But Bush has never defined what the criteria are nor the precise nature of the oversight the program receives.