President Bush claimed yesterday that he was not expanding unchecked power of the executive branch of US government with his secret domestic spying program: “to say ‘unchecked power’ basically is ascribing some kind of dictatorial position to the president, which I strongly reject.” Bush defended the warrantless wiretapping of telephone conversations and email of US citizens as his “obligation to protect you.” Refusing to say how many people are under surveillance, what criteria must be met to begin surveillance, or if any terrorist plots had been subverted, Bush cited secret briefings with a few congressional leaders and internal administrative review as the only limits on a president’s power during war.
Citing his power under Article II of the US Constitution and the congressional resolution authorizing force after the 11 September 2001 attacks—specifically authorizing the president to use “all necessary and appropriate force”—Bush claimed his actions had absolute legal authorization.
Congress, for its part, mostly wasn’t buying it. Senate judiciary chair Arlen Specter (R-Pennsylvania) announced hearings next month on the issue; Senator Jay Rockefeller (D-West Virginia) released a secret letter he sent to Vice President Cheney in July 2003 objecting to the administration’s domestic spying activities; and Senator Russell Feingold (D-Wisconsin) broached the idea of a special prosecutor adding that Attorney General Alberto R. Gonzales would have to recuse himself. Senator Barbara Boxer (D-California) quoted John Dean, President Nixon’s White House counsel during the Watergate era, as saying that Bush had admitted to an impeachable offense. For his part, the only investigation Bush was having any part of was the presumed inquiry by the Justice Department into the leak about the NSA program: “It was a shameful act for someone to disclose this very important program in a time of war. The fact that we’re discussing this program is helping the enemy.”
Bush stated repeatedly that the secret courts authorized by the Foreign Intelligence Surveillance Act (FISA) were not quick enough to combat terrorism. But FISA authorizes the National Security Agency (NSA) to wiretap international calls for up to 72 hours without a warrant, so long as a warrant is obtained retroactively. FISA also specifically prohibits wiretapping “except as authorized by statute.” According to a Washington Post report by Peter Baker and Charles Babington, the secret FISA court “has rejected just five of 18,748 requests for wiretaps and search warrants.” Other sources indicate that of those five rejections, only one was upheld on appeal to yet another secret court.
In another Washington Post account, Charles Lane compares the situation to President Truman’s 1952 federal takeover of the US steel industry to prevent a strike:
“By a vote of 6 to 3, the court rejected Truman’s claim. In an influential concurring opinion, Justice Robert H. Jackson wrote that the president’s power is ‘at its lowest ebb’ when he ‘takes measures incompatible with the expressed or implied will of Congress.’
“‘With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations,’ Jackson wrote.”
Air Force General Michael V. Hayden—who was NSA director when the secret surveillance began and is now the deputy director of national intelligence for the Bush administration—offers a glimpse into Bush’s possible motivation in a White House briefing yesterday: obtaining retroactive warrants for a wiretap is inefficient because “it involves marshaling arguments….”
Some, including Perry Metzger—moderator of the cryptome mailing list—argue that President Bush has clearly committed a felony, violating Title 50, Subchapter I—Electronic Surveillance of the US Code.
In what seems like a 30-year horrible flashback, the American Civil Liberties Union (ACLU) yesterday released FBI records detailing governmental monitoring of domestic advocacy groups “engaged in antiwar, environmental, civil rights and other causes,” writes the Washington Post‘s Spencer S. Hsu:
“The disclosure comes amid recent revelations about the extent of domestic spying by the government after the Sept. 11, 2001, terrorist attacks. Those disclosures include the expansion within the United States of military intelligence and databases covering, among others, peace activists; increased use of ‘national security letters’ by the FBI to examine personal records of tens of thousands of citizens; and, most recently, warrantless eavesdropping of overseas telephone calls and e-mails by U.S. citizens suspected of ties to terrorists.
“ACLU leaders contend that the memos show that FBI and government Joint Terrorism Task Forces across the country have expanded the definition of domestic terrorism to people who engage in mainstream political activity, including nonviolent protest and civil disobedience.”
Update: Tuesday 20 December 2005 2:15PM CST: JD Lasica points to Democratic Chairman Howard Dean filing a demand that the Justice Department release documents related to political appointees writing classified legal opinions justifying President Bush’s secret wiretap orders.
Update: Tuesday 20 December 2005 5:25PM CST: Security expert Bruce Schneier hypothesizes that perhaps President Bush wanted to change the surveillance paradigm from a retail model like that provided by the FBI to a wholesale model operated by the NSA—listening to everything instead of targeting select individuals. Very highly recommended.