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Bush Authorized Domestic Spying Before 9/11
By Jason Leopold
01/13/06 "ICH"
-- -- The National Security Agency advised President Bush in
early 2001 that it had been eavesdropping on Americans during
the course of its work monitoring suspected terrorists and
foreigners believed to have ties to terrorist groups, according
to a declassified document.
The NSA's vast data-mining activities began shortly after Bush
was sworn in as president and the document contradicts his
assertion that the 9/11 attacks prompted him to take the
unprecedented step of signing a secret executive order
authorizing the NSA to monitor a select number of American
citizens thought to have ties to terrorist groups.
In its "Transition 2001" report, the NSA said that the
ever-changing world of global communication means that "American
communication and targeted adversary communication will
coexist."
"Make no mistake, NSA can and will perform its missions
consistent with the Fourth Amendment and all applicable laws,"
the document says.
However, it adds that "senior leadership must understand that
the NSA's mission will demand a 'powerful, permanent presence'
on global telecommunications networks that host both 'protected'
communications of Americans and the communications of
adversaries the agency wants to target."
What had long been understood to be protocol in the event that
the NSA spied on average Americans was that the agency would
black out the identities of those individuals or immediately
destroy the information.
But according to people who worked at the NSA as encryption
specialists during this time, that's not what happened. On
orders from Defense Department officials and President Bush, the
agency kept a running list of the names of Americans in its
system and made it readily available to a number of senior
officials in the Bush administration, these sources said, which
in essence meant the NSA was conducting a covert domestic
surveillance operation in violation of the law.
James Risen, author of the book State of War and credited with
first breaking the story about the NSA's domestic surveillance
operations, said President Bush personally authorized a change
in the agency's long-standing policies shortly after he was
sworn in in 2001.
"The president personally and directly authorized new
operations, like the NSA's domestic surveillance program, that
almost certainly would never have been approved under normal
circumstances and that raised serious legal or political
questions," Risen wrote in the book. "Because of the fevered
climate created throughout the government by the president and
his senior advisers, Bush sent signals of what he wanted done,
without explicit presidential orders" and "the most ambitious
got the message."
The NSA's domestic surveillance activities that began in early
2001 reached a boiling point shortly after 9/11, when senior
administration officials and top intelligence officials asked
the NSA to share that data with other intelligence officials who
worked for the FBI and the CIA to hunt down terrorists that
might be in the United States. However the NSA, on advice from
its lawyers, destroyed the records, fearing the agency could be
subjected to lawsuits by American citizens identified in the
agency's raw intelligence reports.
The declassified report says that the "Director of the National
Security Agency is obligated by law to keep Congress fully and
currently formed of intelligence activities." But that didn't
happen. When news of the NSA's clandestine domestic spying
operation, which President Bush said he had authorized in 2002,
was uncovered last month by the New York Times, Democratic and
Republican members of Congress appeared outraged, claiming that
they were never informed of the covert surveillance operation.
It's unclear whether the executive order signed by Bush removes
the NSA Director from his duty to brief members of Congress
about the agency's intelligence gathering programs.
Eavesdropping on Americans required intelligence officials to
obtain a surveillance warrant from a special court and show
probable cause that the person they wanted to monitor was
communicating with suspected terrorists overseas. But Bush said
that the process for obtaining such warrants under the 1978
Federal Intelligence Surveillance Act was, at times,
"cumbersome."
In a December 22, letter to the Senate Select Committee on
Intelligence, Assistant Attorney General William E. Moschella
wrote that the "President determined it was necessary following
September 11 to create an early warning detection system. FISA
could not have provided the speed and agility required for the
early warning detection system."
However, what remains murky about that line of reasoning is that
after 9/11, former Attorney General John Ashcroft undertook a
full-fledged lobbying campaign to loosen the rules and the laws
governing FISA to make it easier for the intelligence community
to obtain warrants for wiretaps to spy on Americans who might
have ties to terrorists. Since the legislative change, more than
4,000 surveillance warrants have been approved by the FISA
court, leading many to wonder why Bush selectively chose to
bypass the court for what he said were a select number of
individuals.
More than a dozen legal scholars dispute Moschella's legal
analysis, saying in a letter just sent to Congress that the
White House failed to identify "any plausible legal authority
for such surveillance."
"The program appears on its face to violate existing law," wrote
the scholars of constitutional law, some of whom worked in
various senior capacities in Republican and Democratic
administrations, in an extraordinary letter to Congress that
laid out, point by point, why the president is unauthorized to
permit the NSA to spy on Americans and how he broke the law by
approving it.
"Even conceding that the President in his role as Commander in
Chief may generally collect 'signals intelligence' on the enemy
abroad, Congress indisputably has authority to regulate
electronic surveillance within the United States, as it has done
in FISA," the letter states. "Where Congress has so regulated,
the President can act in contravention of statute only if his
authority is exclusive, that is, not subject to the check of
statutory regulation. The DOJ letter pointedly does not make
that extraordinary claim. The Supreme Court has never upheld
warrantless wiretapping within the United States."
Additionally, "if the administration felt that FISA was
insufficient, the proper course was to seek legislative
amendment, as it did with other aspects of FISA in the Patriot
Act, and as Congress expressly contemplated when it enacted the
wartime wiretap provision in FISA," the letter continues. "One
of the crucial features of a constitutional democracy is that it
is always open to the President - or anyone else - to seek to
change the law. But it is also beyond dispute that, in such a
democracy, the President cannot simply violate criminal laws
behind closed doors because he deems them obsolete or
impracticable."
Jeffrey Smith, the former General Counsel for the CIA under the
Clinton administration, also weighed in on the controversy
Wednesday. Smith said he wants to testify at hearings that Bush
overstepped his authority and broke the law. His own legal
opinion on the spy program was included in a 14-page letter to
the House Select Committee on Intelligence that said that
President Bush does not have the legal authority to order the
NSA to spy on American citizens, aides to Congressman John
Conyers said Wednesday evening.
"It is not credible that the 2001 authorization to use force
provides authority for the president to ignore the requirements
of FISA," Smith wrote, adding that if President Bush's executive
order authorizing a covert domestic surveillance operation is
upheld as legal "it would be a dramatic expansion of
presidential authority affecting the rights of our fellow
citizens that undermines the checks and balances of our system,
which lie at the very heart of the Constitution."
Still, one thing that appears to be indisputable is that the NSA
surveillance began well before 9/11 and months before President
Bush claims Congress gave him the power to use military force
against terrorist threats, which Bush says is why he believed he
had the legal right to bypass the judicial process.
According to the online magazine Slate, an unnamed official in
the telecom industry said NSA's "efforts to obtain call details
go back to early 2001, predating the 9/11 attacks and the
president's now celebrated secret executive order. The source
reports that the NSA approached U.S. carriers and asked for
their cooperation in a 'data-mining' operation, which might
eventually cull 'millions' of individual calls and e-mails."
Jason Leopold is the author of the explosive memoir, News
Junkie, to be released in the spring of 2006 by Process/Feral
House Books. Visit Leopold's website at
http://www.jasonleopold.com for updates.
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