President Bush Used the NSA to Spy on Americans Illegally

By Marcel Votlucka 
Staff Writer 


The President admits to spying on Americans 

"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. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks." 

With these seemingly benign words, President Bush admitted that he authorized the National Security Agency to begin a secret program to spy on American citizens and foreign nationals--without court approval. The program was first authorized shortly after 9/11 and Bush has re-authorized it over three dozen times since then, the Chicago Sun-Times reports. The NSA monitored the phone calls and emails of hundreds and possibly thousands of Americans and foreign nationals as part of a counterterrorism push. But it was done illegally and in contempt of the Constitution and the Foreign Intelligence Surveillance Act of 1978 (FISA). 

Not only that, but members of Congress from both sides of the aisle are accusing the President of misinforming them on the details of the spying program. For instance, former Democratic Senator Bob Graham, the former chair of the Senate Intelligence Committee, says he was never told about the eavesdropping on American citizens and foreign nationals nor of the bypassing of courts. Nor do he and other members of Congress receive the same scope of information as the President; the Congressional Research Service further identifies nine items that generally are not shared with Congress, including the President's Daily Brief, a compilation of analyses that's given only to the president and a handful of top aides, and a daily digest on terrorism-related matters.

What is FISA and how does it work? 

In Katz v. United States (1967), the Supreme Court ruled that electronic surveillance is a violation of the Fourth Amendment, except in cases involving national security. A series of conflicting court rulings over the next decade created a ton of confusion over just what legal authority the government had to conduct wiretaps and bug phone lines and such--particularly with respect to foreign intelligence gathering. This confusion led to the Foreign Intelligence Surveillance Act of 1978, which governs these kinds of surveillance operations. It was meant to clear up these legal difficulties and establish a sound process for intelligence gathering. 

The Foreign Intelligence Surveillance Act requires that in order to conduct electronic surveillance on any party (tapping phones, reading emails, searching computers, etc) there must be probable cause that someone has committed a crime or is planning to commit one--the USA PATRIOT Act of 2001 amended FISA to include terrorism as well. FISA applies to individuals and groups working for a foreign government or a foreign terrorist organization. FISA also sets up a special secret court to grant warrants to government officials seeking to spy on these groups--such as the President in this case. 

The intelligence community and many politicians argue that FISA's provisions need to be maintained and even expanded due to the amorphous nature of modern terrorist groups and the need to protect classified information. On the other hand, civil libertarians and legal scholars argue that FISA itself violates the Fourth Amendment’s provision against unreasonable searches and seizures, and that secret courts and warrants violate due process of law--a transparent process being regarded as one of the hallmarks of due process. 

The bottom line, in any case, is that FISA requires government officials to seek a warrant from its secret court before doing any foreign surveillance. And it is a rather easy and painless process. Renowned trial lawyer Martin Garbus says of the FISA court, "out of some 15,000 warrant applications, there were eight that were denied since 1978, so it's basically a rubber stamp. Now, what Bush said is, 'I don't have the time,' he says, 'to go to FISA.' Now, everybody has had the time to go to FISA. It doesn't take any time at all." 

FISA Serves as a Check on Executive Power 

Investigative journalist James Bamford asserts that FISA was meant to be a check on executive power. "When the Foreign Intelligence Surveillance Act was created in 1978, one of the things that the Attorney General at the time, Griffin Bell, said--he testified before the intelligence committee, and he said that the current bill recognizes no inherent power of the President to conduct electronic surveillance. He said, 'This bill specifically states that the procedures in the bill are the exclusive means by which electronic surveillance may be conducted.' In other words, what the President is saying is that he has these inherent powers to conduct electronic surveillance, but the whole reason for creating this act, according to the Attorney General at the time, was to prevent the President from using any inherent powers and to use exclusively this act" [emphasis mine]. 

The President Violated the Law in Numerous Ways 

President Bush defended his actions in his December 17th radio address. "I am using authority vested in me by Congress, including the Joint Authorization for Use of Military Force, which passed overwhelmingly in the first week after September the 11th. I'm also using constitutional authority vested in me as Commander-in-Chief." 

He's wrong. The President's actions violate the law in many ways and the consequences could be dire. For starters, through ordering the National Security Agency to spy on American citizens without FISA warrants--despite the ease of obtaining them--President Bush violated the Foreign Intelligence Surveillance Act. This is a felony punishable by five years in prison. It is also an impeachable offence. 

By law and through executive order, intelligence has become part of the executive branch's responsibilities, but the Constitution never mentions conducting espionage against American citizens without due process as part of the responsibilities of the Commander-in-Chief. Furthermore, the powers of Congress, as listed in the Constitution, also do not provide for spying on American citizens without due process of law. In fact, several agencies that we take for granted, such as the NSA and CIA, have a rather tenuous Constitutional basis. 

As for the Joint Authorization for Use of Military Force giving Bush the right to break the laws of this nation, this claim is also false. The Authorization states, "[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." Its language openly violates the long-established Constitutional limits on executive power; the founding document itself was intended by the Framers to prevent the government to award itself such vague blanket powers. 

Legal precedent is not on Bush's side in this case. David G. Savage and Bob Drogin of the Los Angeles Times point out that "the president's lawyers have maintained that the commander in chief has the 'inherent' authority to act in the interest of national security, even if he overrides the law. But the Supreme Court did not accept that claim when it was tested in the past. In 1972, the justices unanimously rejected President Nixon's contention that he had the power to order wiretapping without a warrant to protect national security." 

Furthermore, Congressional leaders argue that the Administration is not being forthcoming with valuable information, and it is deliberately misinforming members of Congress on this matter. If so, Bush has dug himself a deeper hole. The Federal Anti-Conspiracy Statute makes it a felony "to defraud the United States or any agency thereof in any manner for any purpose." In addition, the issuance of knowingly and willingly false statements to the Congress violates the False Statements Act of 1996. These, too, are impeachable offences. 

In fact, Congressman John Conyers has already introduced a bill to censure the President and Vice President for allegedly misleading Congress on the program. 

A Little Bit of Context 

Simply put, as far as the Constitution and the law are concerned the President does not have the kind of authority he thinks he does, and for good reason. Instead of facing up to these serious issues frankly, the President has chosen to lash out at critics. In his radio address he complained, "the existence of this secret program was…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." 

Bush defends his illegal spy program on the grounds that it protects classified information. Yet it's widely suspected that someone within the Bush Administration, possibly aide Karl Rove, leaked the name of a covert CIA operative, Valerie Plame, to the media as retaliation for her husband, Ambassador Joseph Wilson, debunking Bush’s pre-war claims that Iraq sought weapons-grade uranium from Africa. If it is true that the Administration leaked this sort of classified information, this reveals more than a little hypocrisy in Bush’s positions as well as yet another breach of the law…perhaps even treason. 

Furthermore, these revelations regarding the illegal spy program have come at the same time newly released documents show that the FBI has been using clandestine means to monitor domestic activist groups, including Greenpeace, Catholic Worker, the American-Arab Anti-Discrimination Committee and PETA, the People For the Ethical Treatment of Animals. The American Civil Liberties Union has said "It's clear that this administration has engaged every possible agency, from the Pentagon to N.S.A. to the F.B.I., to engage in spying on Americans." 

One last item to consider in the context of these revelations is that fact that the New York Times broke the story after sitting on it for a year. The Times broke the story about Bush’s illegal spy operation on December 17, but also admitted in its report that it had kept quiet about its knowledge of the operation for a year—at the request of the White House. Times editor Bill Keller explains his paper finally decided to go public with the story because of its concern with its impact on civil liberties issues and the fact that releasing the story would not cause harm to intelligence-gathering activities. 

There is more to this story than meets the eye. This case involves not just spying illegally on Americans, but also defrauding a federal agency (the NSA) in order to do so, providing limited information or possible misleading Congress on the program, violating due process of law, abusing checks and balances on the executive branch, and using the media to try to hide the story. These are serious offenses and they must be taken seriously and addressed immediately. 

Richard M. Nixon Redux? 

FISA and its court, however secretive and unconstitutional they are, were intended to serve as checks on the long arm of government. After all, the Act was ratified only a few years after the Watergate scandal, in which President Nixon spied illegally on the rival Democratic Party offices in the Watergate Hotel. Also, recall that FISA is the only legal means by which electronic surveillance can be conducted by the government--legal means the President openly admits he did not employ. 

Ultimately, all of these recent developments plainly shows the Bush Administration's contempt for law, due process, ethics, and truth. We’ve seen what that sort of foul play earned Richard Nixon in the end. Time will tell just what Bush will earn from repeating Nixon’s mistakes.