Jason Leopold | Bush Authorized Domestic Spying before 9/11

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Jason Leopold | Bush Authorized Domestic Spying before 9/11

Fri, 13 Jan 2006 06:29:33 -0800

 

 

 

Jason Leopold | Bush Authorized Domestic Spying before 9/11

http://www.truthout.org/docs_2006/011306Z.shtml

 

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. "

 

 

http://www.truthout.org/docs_2006/011306Z.shtml

 

 

Bush Authorized Domestic Spying before 9/11

By Jason Leopold

t r u t h o u t | Perspective

 

Friday 13 January 2006

 

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 spent two years covering California's electricity

crisis as Los Angeles bureau chief of Dow Jones Newswires. Jason has

spent the last year cultivating sources close to the CIA leak

investigation, and is a regular contributer to t r u t h o u t.

 

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