Big Brother Bush is watching you

[PUGalicious]

(Originally posted here)


The New York Times reports on yet another agency that's engaged in domestic spying:

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval represents a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches. [...]

Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation's legality and oversight.

For some, this is no big deal because, after all, we are trying to protect ourselves from terrorism in this country. I have no problem with trying to protect ourselves, but how many freedoms do we give up in the process and how far before it's too far. There's very little oversight and certainly very little accountability within this administration. The GOP-led Congress won't do anything until it hits close to home (which is likely more likely than they might believe).

The ultimate point is this. If we lose our freedoms in the process of protecting ourselves from terrorists, then haven't the terrorists won anyway? It's a very slipperly slope when the government gets a taste of domestic spying. Today it's Arab Americans, tomorrow it could be activist organizations — oh, wait... that's happening today too...

(A paraphrase of a paraphrase of the poem written after World War II)

When they came for the Arabs and the Muslims,
I turned away

When they came for the Jews and the blacks,
I turned away

When they came for the writers and the thinkers
and the radicals and the protestors,
I turned away

When they came for the gays, and the minorities,
and the utopians, and the dancers,
I turned away

And when they came for me,
I turned around and around,
and there was nobody left...

And that's the point.

.

[workman45]

The Wall Street Journal editorial page:

Thank You for Wiretapping

Why the Founders made presidents dominant on national security.

Wisconsin Democrat Russ Feingold wants to be President, and that's fair enough. By all means go for it in 2008. The same applies to Lindsey Graham, the South Carolina Republican who's always on the Sunday shows fretting about the latest criticism of the Bush Administration's prosecution of the war on terror. But until you run nationwide and win, Senators, please stop stripping the Presidency of its Constitutional authority to defend America.
That is the real issue raised by the Beltway furor over last week's leak of National Security Agency wiretaps on international phone calls involving al Qaeda suspects. The usual assortment of Senators and media potentates is howling that the wiretaps are "illegal," done "in total secret," and threaten to bring us a long, dark night of fascism. "I believe it does violate the law," averred Mr. Feingold on CNN Sunday.

The truth is closer to the opposite. What we really have here is a perfect illustration of why America's Founders gave the executive branch the largest measure of Constitutional authority on national security. They recognized that a committee of 535 talking heads couldn't be trusted with such grave responsibility. There is no evidence that these wiretaps violate the law. But there is lots of evidence that the Senators are "illegally" usurping Presidential power--and endangering the country in the process.





The allegation of Presidential law-breaking rests solely on the fact that Mr. Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. But no Administration then or since has ever conceded that that Act trumped a President's power to make exceptions to FISA if national security required it. FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed.
The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that "we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

On Sunday Mr. Graham opined that "I don't know of any legal basis to go around" FISA--which suggests that next time he should do his homework before he implies on national TV that a President is acting like a dictator. (Mr. Graham made his admission of ignorance on CBS's "Face the Nation," where he was representing the Republican point of view. Democrat Joe Biden was certain that laws had been broken, while the two journalists asking questions clearly had no idea what they were talking about. So much for enlightening television.)

The mere Constitution aside, the evidence is also abundant that the Administration was scrupulous in limiting the FISA exceptions. They applied only to calls involving al Qaeda suspects or those with terrorist ties. Far from being "secret," key Members of Congress were informed about them at least 12 times, President Bush said yesterday. The two district court judges who have presided over the FISA court since 9/11 also knew about them.

Inside the executive branch, the process allowing the wiretaps was routinely reviewed by Justice Department lawyers, by the Attorney General personally, and with the President himself reauthorizing the process every 45 days. In short, the implication that this is some LBJ-J. Edgar Hoover operation designed to skirt the law to spy on domestic political enemies is nothing less than a political smear.

All the more so because there are sound and essential security reasons for allowing such wiretaps. The FISA process was designed for wiretaps on suspected foreign agents operating in this country during the Cold War. In that context, we had the luxury of time to go to the FISA court for a warrant to spy on, say, the economic counselor at the Soviet embassy.

In the war on terror, the communications between terrorists in Frankfurt and agents in Florida are harder to track, and when we gather a lead the response often has to be immediate. As we learned on 9/11, acting with dispatch can be a matter of life and death. The information gathered in these wiretaps is not for criminal prosecution but solely to detect and deter future attacks. This is precisely the kind of contingency for which Presidential power and responsibility is designed.

What the critics in Congress seem to be proposing--to the extent they've even thought much about it--is the establishment of a new intelligence "wall" that would allow the NSA only to tap phones overseas while the FBI would tap them here. Terrorists aren't about to honor such a distinction. As Secretary of State Condoleezza Rice said Sunday on NBC's "Meet the Press," before 9/11 "our intelligence agencies looked out; our law enforcement agencies looked in. And people could--terrorists could--exploit the seam between them." The wiretaps are designed to close the seam.





As for power without responsibility, nobody beats Congress. Mr. Bush has publicly acknowledged and defended his decisions. But the Members of Congress who were informed about this all along are now either silent or claim they didn't get the full story. This is why these columns have long opposed requiring the disclosure of classified operations to the Congressional Intelligence Committees. Congress wants to be aware of everything the executive branch does, but without being accountable for anything at all. If Democrats want to continue this game of intelligence and wiretap "gotcha," the White House should release the names of every Congressman who received such a briefing.
Which brings us to this national security leak, which Mr. Bush yesterday called "a shameful act." We won't second-guess the New York Times decision to publish. But everyone should note the irony that both the Times and Washington Post claimed to be outraged by, and demanded a special counsel to investigate, the leak of Valerie Plame's identity, which did zero national security damage.

By contrast, the Times' NSA leak last week, and an earlier leak in the Washington Post on "secret" prisons for al Qaeda detainees in Europe, are likely to do genuine harm by alerting terrorists to our defenses. If more reporters from these newspapers now face the choice of revealing their sources or ending up in jail, those two papers will share the Plame blame.

The NSA wiretap uproar is one of those episodes, alas far too common, that make us wonder if Washington is still a serious place. Too many in the media and on Capitol Hill have forgotten that terrorism in the age of WMD poses an existential threat to our free society. We're glad Mr. Bush and his team are forcefully defending their entirely legal and necessary authority to wiretap enemies seeking to kill innocent Americans.

Workman says:
Amazing how the leaker failed to mention the review procedures or congress and the court being informed. So when does the investigation start on this leak?

[PUGalicious]

From Newsweek columnist Jonathan Alter, writing for MSNBC.com:

Finally we have a Washington scandal that goes beyond sex, corruption and political intrigue to big issues like security versus liberty and the reasonable bounds of presidential power. President Bush came out swinging on Snoopgate—he made it seem as if those who didn’t agree with him wanted to leave us vulnerable to Al Qaeda—but it will not work. We’re seeing clearly now that Bush thought 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War.No wonder Bush was so desperate that The New York Times not publish its story on the National Security Agency eavesdropping on American citizens without a warrant, in what lawyers outside the administration say is a clear violation of the 1978 Foreign Intelligence Surveillance Act. I learned this week that on December 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting,
but one can only imagine the president’s desperation.

The problem was not that the disclosures would compromise national security, as Bush claimed at his press conference. His comparison to the damaging pre-9/11 revelation of Osama bin Laden’s use of a satellite phone, which caused bin Laden to change tactics, is fallacious; any Americans with ties to Muslim extremists—in fact, all American Muslims, period—have long since suspected that the U.S. government might be listening in to their conversations. Bush claimed that “the fact that we are discussing this program is helping the enemy.” But there is simply no evidence, or even reasonable presumption, that this is so. And rather than the leaking being a “shameful act,” it was the work of a patriot inside the government who was trying to stop a presidential power grab.

No, Bush was desperate to keep the Times from running this important story—which the paper had already inexplicably held for a year—because he knew that it would reveal him as a law-breaker. He insists he had “legal authority derived from the Constitution and congressional resolution authorizing force.” But the Constitution explicitly requires the president to obey the law. And the post 9/11 congressional resolution authorizing “all necessary force” in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism.

What is especially perplexing about this story is that the 1978 law set up a special court to approve eavesdropping in hours, even minutes, if necessary. In fact, the law allows the government to eavesdrop on its own, then retroactively justify it to the court, essentially obtaining a warrant after the fact. Since 1979, the FISA court has approved tens of thousands of eavesdropping requests and rejected only four. There was no indication the existing system was slow—as the president seemed to claim in his press conference—or in any way required extra-constitutional action.

This will all play out eventually in congressional committees and in the United States Supreme Court. If the Democrats regain control of Congress, there may even be articles of impeachment introduced. Similar abuse of power was part of the impeachment charge brought against Richard Nixon in 1974.

In the meantime, it is unlikely that Bush will echo President Kennedy in 1961. After JFK managed to tone down a New York Times story by Tad Szulc on the Bay of Pigs invasion, he confided to Times editor Turner Catledge that he wished the paper had printed the whole story because it might have spared him such a stunning defeat in Cuba.

This time, the president knew publication would cause him great embarrassment and trouble for the rest of his presidency. It was for that reason—and less out of genuine concern about national security—that George W. Bush tried so hard to kill the New York Times story.

[workman45]

If this was so illegal why did the members of the congressional intelligence committee say or do nothing when they first found out? Why did the judges of the court say or do nothing? All we know for sure is that we don't have all the facts. Yet the people that do have more of the facts have revealed their opinion by their actions, which has been to change nothing. Interesting, either it's not illegal, and someone's making political hay, or it is illegal and the intel was so good everyone kept their mouth shut. Of course that would make all of them acessories wouldn't it?

[PUGalicious]

The judges of the court won't say or do something because they rule on matters that come before them; they don't go prosecute.

As far as the members of the congressional intelligence committees and congressional leaders, they do indeed have questions to answer. I know that ranking member Sen. Rockefeller previously expressed his concerns when he first learned about the program in 2003.

[MadMonk]

People, this has been going on for years (do a Google search on project ECHELON?)

[PUGalicious]

That doesn't make it right.

[MadMonk]

I'm not saying it does, but its ridiculous for everyone to get into a tizzy over it all of a sudden and start saying its all Bush's fault. I have to say though that I'm not surprised at it.

[PUGalicious]

From Think Progress:

Prominent right-wing bloggers – including Michelle Malkin, the Corner, Wizbang and Free Republic — are pushing the argument that President Bush’s warrantless domestic spying program isn’t news because the Clinton administration did the same thing. The right-wing outlet NewsMax sums up the basic argument:

During the 1990’s under President Clinton, the National Security Agency monitored millions of private phone calls placed by U.S. citizens and citizens of other countries under a super secret program code-named Echelon…all of it done without a court order, let alone a catalyst like the 9/11 attacks.

That’s flatly false. The Clinton administration program, code-named Echelon, complied with FISA. Before any conversations of U.S. persons were targeted, a FISA warrant was obtained. CIA director George Tenet testified to this before Congress on 4/12/00:

I’m here today to discuss specific issues about and allegations regarding Signals Intelligence activities and the so-called Echelon Program of the National Security Agency…

There is a rigorous regime of checks and balances which we, the Central Intelligence Agency, the National Security Agency and the FBI scrupulously adhere to whenever conversations of U.S. persons are involved, whether directly or indirectly. We do not collect against U.S. persons unless they are agents of a foreign power as that term is defined in the law. We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department.

Meanwhile, the position of the Bush administration is that they can bypass the FISA court and every other court, even when they are monitoring the communications of U.S. persons. It is the difference between following the law and breaking it.

[Midtowner]

I hereby do dub this thread "The Battle of the Cut & Pasted Partisan Blogs".

I'd really be interested to see a full disclosure as to exactly where this power was used. In other words, was it used to spy on terrorists, or was it used to spy on political rivals?

Without judicial oversight and a requirement for showing cause, I don't think this power should ever be used. I cannot think of a single instance where judicial oversight would not be appropriate. Bush is blundering about bull-in-the-china-closet-style helping his rivals put together a terrific case for impeachment if the Democrats win the House...