[NYTr] Bush Authorized Domestic Spying Before 9/11

[All the News That Doesn't Fit]

Truthout - Oct 13, 2007
http://www.truthout.org/cgi-bin/artman/exec/view.cgi/48/16920

Bush Authorized Domestic Spying Before 9/11

By Jason Leopold

    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 senior editor and reporter for Truthout. He
received a Project Censored award in 2007 for his story on
Halliburton's work in Iran.]