My NSA Bash - “Reach out & Tap Someone”
1:34 pm | Attention Deficit Democracy | Bovard | Bush | Elective Dictatorship | Surveillance | Wiretapping
The American Conservative today placed online my piece on NSA wiretapping here.
June 19, 2006 The American Conservative
Reach Out and Tap Someone
The NSA’s surveillance program undermines the rule of law without producing real gains in security.
By James Bovard
The National Security Agency has been tracking the calls of millions of Americans and constructing the “largest database ever assembled in the world,? USA Today revealed on May 10. The nation’s biggest telephone companies have apparently turned over masses of personal records to the feds, allowing Uncle Sam to build up a database of the phone numbers of incoming and outgoing calls of Americans. The revelations blew to smithereens the Bush administration’s story that only international calls were being tapped without a warrant as part of its so-called “terrorist-surveillance program.?
Bush announced on the day the story came out, “The intelligence activities I authorized are lawful.? However, this may be the result of Cheney logic—that the Supreme Commander has the right to do whatever he feels necessary to protect the public. (The New York Times noted that Cheney and his top aides had been the most aggressive advocates of warrantless wiretaps and rounding up Americans’ phone data.)
In his weekly radio address two days later, Bush sought to quell the controversy: “This week, new claims have been made about other ways we are tracking down al-Qaeda to prevent attacks on America.? Yet unless one considers every American presumptively an al-Qaeda accomplice, the domestic phone intercepts have nothing to do with tracking down al-Qaeda. Bush also declared, “We are not trolling through the personal lives of millions of innocent Americans.? Unless the vast majority of Americans are guilty, there is no way to assert that the feds are not trolling through millions of innocent people’s lives.
The revelations buttress the claims of former AT&T employee Mark Klein, who revealed that equipment was attached to AT&T core operations that empowered the NSA to conduct “vacuum-cleaner surveillance of all the data crossing the Internet.’’ The Electronic Freedom Foundation (EFF) sued AT&T after Klein made his charges and after the New York Times disclosed that the NSA has been conducting warrantless wiretaps on thousands of Americans. In a deposition, Klein related, “In 2003 AT&T built ‘secret rooms’ hidden deep in the bowels of its central offices in various cities, housing computer gear for a government spy operation which taps into the company’s popular WorldNet service and the entire internet. These installations enable the government to look at every individual message on the internet and analyze exactly what people are doing. Documents showing the hardwire installation in San Francisco suggest that there are similar locations being installed in numerous other cities.?
The Electronic Communication Privacy Act of 1986 made it a crime for providers of electronics communications to “knowingly divulge a record or other information pertaining to a subscriber or customer … to any government entity,? and companies can face penalties of $1,000 for each customer whose privacy was violated. (Qwest was the only major phone company to refuse the government’s demand for information—in part because Qwest lawyers and executives recognized that disclosing the information without a court order would be illegal.)
The USA Today disclosures make it even more difficult to trust any assertion on surveillance by high-ranking government officials. On Jan. 23, Gen. Michael Hayden, Bush’s nominee to be CIA chief, declared that the terrorist-surveillance program “is not a drift net … This is focused. It’s targeted. It’s very carefully done. You shouldn’t worry.? Attorney General Alberto Gonzales told the Senate Judiciary Committee on Feb. 6: “Only international communications are authorized for interception under this program. That is, communications between a foreign country and this country.? These comments are reminiscent of Bush’s false assertions during the 2004 presidential campaign that no wiretaps were being conducted without a court order.
The administration’s credibility is also undermined by its tactics to suppress independent evaluation or investigation of its surveillance. The White House has continuously insisted that its terrorist-surveillance program has been thoroughly reviewed by the Justice Department to determine its legality. (Prior to the Bush administration, the courts, not federal agencies, were supposed to be arbiters of the lawfulness of agencies’ actions.) But on May 10, Congress was notified that the Bush administration had effectively scuttled an investigation by the Justice Department’s Office of Professional Responsibility (OPR), the agency’s watchdog, into “whether DOJ lawyers had behaved unethically by interpreting the law too aggressively—by giving a legal green light to coercive interrogations and warrantless eavesdropping,? as Newsweek reported. The Bush administration thwarted the investigation by refusing to grant security clearances to the lawyers investigating the department’s actions. Attorney General Gonzales announced that the OPR investigation was unnecessary because the department had already decided the warrantless wiretaps were legal—despite the objections of Deputy Attorney General James Comey and at least one Foreign Intelligence Surveillance Court judge. Gonzales explained, “We don’t want to be talking so much about the program that we compromise the effectiveness.? He offered no evidence that the OPR had been infiltrated by al-Qaeda.
The Bush team is counting on the “national security? invocation to provide a get-out-of-jail card for any abuses. The Justice Department sought to get a federal judge to dismiss much of the EFF lawsuit, claiming that “the lawfulness of the alleged activities cannot be determined without a full factual record, and that record cannot be made without seriously compromising U.S. national security interests.? Thus, it is no longer safe to permit Americans to know what the government is up to. National security requires that the government have unlimited right to deceive the American people about how far it is intruding into their lives. EFF lawyer Kevin Bankston observed that the feds are “basically saying that no one could ever go to court to stop illegal surveillance so long as they claim it’s for national security. It leaves them completely unaccountable and leaves the communications companies that are colluding with them unaccountable.?
It is amusing to see Republican stalwarts and media stooges pooh-pooh concerns about the feds tracking each citizen’s phone calls. But how would the White House react if someone acquired and published all the records of incoming and outgoing calls to Karl Rove? Creating a database of all the phone calls made and taken by members of Congress could be helpful in future bribery and corruption scandals. Yet there is no chance in Hades that representatives and senators would ever permit other Americans to see such personal data—while many congressmen sneer at citizens who don’t want the feds to have such data on them.
Unfortunately, most Americans seem incapable of recognizing the danger of permitting politicians and government agents to compile dossiers on their personal lives. According to a Washington Post-ABC News poll taken just after the USA Today revelation, “63 percent of Americans said they found the NSA program to be an acceptable way to investigate terrorism, including 44 percent who strongly endorsed the effort. … 66 percent said they would not be bothered if NSA collected records of personal calls they had made…? Americans do not understand the implicit Miranda warning on any such surveillance scheme: any information the feds stockpile can be used against people the government does not like—or people the government seeks to silence or suppress. If Americans acquiesce to the feds warehousing their phone-call data, this will simply encourage the seizure of far more personal information. (The NSA indicated that the calling data is being shared with other federal agencies.)
The media reaction has been short and relatively mild. This is appalling, considering that the FBI appears to be using National Security Letter subpoenas (authorized by the Patriot Act) to round up the calling data of journalists suspected of having received leaks on CIA abuses. ABC News reporter Brian Ross suggested on his blog that the feds are tracking the calls of numerous newspaper and TV reporters to determine who was receiving leaks from government officials. Perhaps some journalists are afraid to criticize the government or perhaps they fear losing access to government officials—or perhaps they simply don’t give a damn.
The latest revelations are not the end of the story. Instead, they are simply one in a series of revelations of the feds ignoring both the statute book and the Constitution. Former NSA intelligence officer Russ Tice warned that people “are only seeing the tip of the iceberg? of domestic-surveillance abuses. Seymour Hersh reports in the new issue of The New Yorker that a government consultant informed him that “tens of thousands have had their calls monitored in one way or the other,? including the use of computers to listen for key words in their conversations.
The roundup of domestic calling records is part of a pattern of aggressive seizures of information by the Bush administration, which successfully pressured America Online and MSN to turn over the records of how millions of people had used their computer search engines. Google resisted similar federal demands, but the feds recently turned up the heat. The Justice Department claims the information is necessary to produce evidence to justify reintroducing the Child Online Protection Act, which has been struck down as unconstitutional by the Supreme Court. Technology expert John Dvorak suggests that it is plausible that the government is gathering up the search histories for purposes unrelated to child-porn crackdowns.
The combination of the phone-call data and the online-search records would go a long way to creating Total Information Awareness (TIA). When the Bush administration first pushed TIA as a ticket to safety in 2002, a public uproar awoke Congress and forced the administration to formally shelve efforts to track almost every area of people’s lives. But the feds apparently ignored any congressional orders to cease and desist.
The terrorist surveillance program is the result of a personal edict issued by the president. What other National Security Presidential Directives might Bush have issued? How many laws must be violated before citizens recognize that the government is fundamentally lawless?
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James Bovard is the author of the recently released Attention Deficit Democracy and eight other books.
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charlie ehlen
Comment on Wednesday 14th June 2006 @ 8:11 am
Mr. Bovard,
Thank you for your latest article on the domestic spying mess.
I would like to see a list of every phone call, email, and fax(if they are still used) from every member of Congress. Then we might see some hell raised about the “lawful surrveilance” being done by the Shrub and his criminal gang.
I still want to see this entire criminal administration in orange jump suits and leg irons, doing life at making little rocks from big rocks. Oh, and with NO chance of ever getting any parole or pardon. The criminal assault on the Bill of Rights has to stop. Somehow, we the people need to take back the government from the big business and other “special(?) interests”. How we might be able to do this with our attention deficit democracy is hard to see. Either we get our government back, or we go off to the camps. What a shame that America has come to this sorry state of affairs today.
Gabe J
Comment on Thursday 22nd June 2006 @ 7:17 pm
What I find especially amusing about this situation, is that for years, the concept of “big brother” monitoring your phonecalls has been considered a laughably absurd concept, one for the crackpots and conspiracy theorists, and yet now, our government admits that not only has it been tapping phones, but now says that phone tapping is a necessary reality of our lives, and it will continue to do so.
The current administration is out of controll, almost laughably so. Do they honestly think that as a nation we will lookback proudly on imprisoning persons without trials, tapping phones, snaek and peek warrants ar any of the other “necessary” violations of our liberties that are being perpetrated? It is disgusting.
Jim
Comment on Friday 23rd June 2006 @ 10:00 pm
Agreed. It is said to see how much crap people take from the government these days.
If it wasn’t for good beer, I would become cynical.
Stephen
Comment on Sunday 17th September 2006 @ 4:46 am
The most compelling and direct source of the President’s legal authority to conduct the Terrorist Surveillance Program without obtaining a warrant is the US Constitution. The President’s constitutional authority to gather intelligence comes from the President’s constitutional power to reserve any “judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers within or without this country.” (United States vs. United States District Court, 1972). This case’s reference to intelligence collection applies to the Terrorist Surveillance Program because it is limited to the collection of intelligence on foreign powers by only monitoring conversations between US persons and persons outside of the United States (Moschella, 7). There is nothing in the constitution which precludes the President from collecting foreign intelligence by way of domestic sources (i.e. a wiretap on a US Citizen). The presidential authority to collect foreign intelligence domestically was upheld in the case of United States vs. Brown (1973) by the majority opinion which asserted that “because of the President’s constitutional duty to act for the US in the filed of foreign relations, and his inherent power to protect the national security in the context of foreign affairs, the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence.” Many critics have put forth the argument that because the 1973 decision was made before the passing of the FISA Act (Foreign Intelligence Surveillance Act of 1978) it is not valid, however this is ignoring the fact that the Supreme Court makes it’s decision purely based on constitutionality, not on laws passed by congress. Furthermore, despite the fact that the US vs. Brown decision was passed before the FISA Act of 1978, the constitutional power it interprets cannot legally be removed by any act of congress. Several Supreme Court cases have upheld that Congress may not remove any power granted to the President by the constitution, including In Re Sealed Case 310. F. 3d (2002) which asserts that “the President has inherent constitutional authority to collect foreign intelligence – authority Congress may not circumscribe”. This case clearly upholds that even if the FISA Act were to make the President’s actions illegal, this illegality is invalid because it removes a power granted to him by the constitution. The fact that the Supreme Court has upheld the President’s authority to conduct warrantless domestic collection of foreign intelligence, coupled with the fact that this power cannot be removed by congress, clearly gives the President constitutional authority to conduct the warrantless wiretap program.
Constitutionality aside, the Foreign Intelligence Surveillance Act itself has a caveat in it which allows for foreign intelligence collection agencies to conduct domestic collection without obtaining the warrant. US Code § 1802 states that “the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year”. Although there was no warrant acquired from the FISA Court to conduct the wiretaps, Attorney General’s approval was sought and given. It is not clear why the press has chosen to completely omit this section in the law during it’s reporting, but the nomenclature is very clear. If there were any confusion about the wording of that section of the FISA Act, the process of obtaining Attorney General approval for domestic intelligence collection is re-iterated in Executive Order 12333 Section 2.5 (1980) which states that “The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes”. This Executive Order was passed 26 years ago and was not challenged until the recent actions of the Bush Administration. In addition to the President seeking approval of the wiretaps before conducting them, he also sought the legal counsel of the Attorney General before the start of the program in order to ensure it’s legality. The fact that President Bush followed outlined provisions from US Code and Executive Order to conduct warrantless wiretaps, in addition to the fact that legal counsel was sought in advance, denotes a clear intent to conduct the program legally by the President himself. Even if the program were proven to be illegal, the President’s actions could never be because he was operating within established procedure and precedence.
The third argument that can be made for legality stems from Congress’s “Authorization for the use of Military Force” against Al-Qaeda. The “Authorization for Use of Military Force Against Terrorists” (AUMF) passed by Congress Section 2(a) authorizes the President to “use all necessary… force against those nations, organizations or persons he determines planned, authorized, committed or aided the [9/11] terrorist attacks.” This authorization, much like ones in the past, puts the President in similar executive position as previous Presidents during time of war. The Attorney General (in a letter to congress, 28 February 2006) asserts that this AUMF, authorizes the President to use “all necessary force” against Al-Qaeda includes the conducting of “foreign surveillance”. Furthermore, domestic surveillance can be triggered if an executive-branch official has reasonable grounds to believe that a communication involves a person “affiliated with al-Qaeda or part of an organization or group that is supportive of al-Qaeda.” (28 February, 2006). This assertion was reiterated in a Department of Justice memorandum which explains that the President was purposefully given broad authority to combat Al-Qaeda because of the nature and uniqueness of the threat (2). That authority can be used “to prevent further catastrophic attack expressly conferred on the President by the Constitution and confirmed and supplemented by Congress in the AUMF—has legal authority to authorize the NSA to conduct the signals intelligence activities he has described. Those activities are authorized by the Constitution and by statute, and they violate neither FISA nor the Fourth Amendment.” (3). The President was given broad authority to combat Al-Qaeda’s domestic threat, and part of that domestic threat includes Al-Qaeda’s domestic conduct. The only way to wage war against an enemy which operates on American soil is to use the tools of war on America soil. One of the most vital tools of waging war is intelligence surveillance.
Contemporary issues notwithstanding, history has provided precedence for conducting programs such as the Terrorist Surveillance Program. The war against Al-Qaeda is the first congressionally sanctioned war since World War II in which the United States is combating an enemy that has the capability of directly attacking the United States of America. The act of warrantless wiretapping itself has been engaged in by three previous US Presidents. Woodrow Wilson conducted wiretaps on all incoming wires from outside of the country during World War I under the guise of special “War Powers”. Franklin Roosevelt authorized a similar warrantless program during World War II, even after the Supreme Court had established the need to obtain a warrant for such actions in 1924. The “War Powers” President Bush is afforded to fight Al Qaeda should at least be considered partially as strong as those of Wilson and Franklin. This is not only because of the AUMF’s language, but also because Al Qaeda is the only foreign power to threaten US soil since World War II. More recently, President Richard Nixon conducted warrantless wiretaps outside of the declaration of war during the 1970s, citing his intelligence collection authority and nothing else as justification (Halperin, 2). These actions are consistent with the historical trend of Presidents taking on special powers, sometimes at the expense of civil liberties or outside of the scope of presidential authority, to combat temporary and unique threats. From Abraham Lincoln’s declaration of martial law to Roosevelt’s seizure of the steel industry (Fisher, 106), Presidents have exercised special powers specifically tailored to unique threats. These threats are not limited to security threats, and the expansion of power in the time of crisis is not limited to powers of war or violation of civil liberties. One especially compelling example of this was the expansion of the scope of Presidential power during the administrations of Roosevelt, Truman, Eisenhower and Johnson to force state and local authorities to enforce anti-discrimination laws (Fisher, 107). Although this is often argued as being well outside of the scope of Presidential power, it was necessary to combat the uniqueness of the problem at hand. President Bush’s Terrorist Surveillance Program is more regulated, smaller in scale and more within the scope of Presidential powers than the majority of “War Powers” exercised by his predecessors. Presidents have used “War Powers” and “Special Powers” to do things such as falsely imprison citizens, take power away from States, violate privacy and seize private companies for government use. It is clear that, from a historical standpoint, President Bush’s program falls well within the traditional scope of appropriate presidential power during times of national crisis. Furthermore, it pales in comparison to the actions taken by his predecessors in similarly grievous times of crisis.
Despite the evidence presented, the question of the programs legality is as of yet undetermined. Circuit Court Judge Taylor recently ruled the program was illegal in the case of ACLU vs NSA on the 4th of September, 2006. This decision, although suspended and not yet an established precedence, could be taken to show that there are still many questions remaining about the legality of the program. This is called into questions by many critics of the decision that have argued Judge Taylor failed to address the specific statues authorizing the President’s actions as well as established judicial precedence. The largest problem with the decision stems from it’s blatant failure to address the President’s constitutional intelligence gathering authority (Taylor, 2-3). The judge’s argument focuses on the ideological aspects of the fourth amendment, but fails to address the issue of powers afforded to the President specifically by the constitution. The decision will not be final until it is upheld or overturned by the Supreme Court in appeal, so for now the question of the constitutionality of the Terrorist Surveillance Program is still up for debate.
In the end, the question of the Terrorist Surveillance Program’s legality is one that includes many long standing legal debates. These debates include how to interpret the Constitution, presidential power in times of war and subtleties in the nature of the balance of power between the three branches of government. The nature of presidential power during times of crisis is one of those often debated issue. There, however, may never be a definitive interpretation of the constitution which determines what the scope of the President’s special powers is during times of crisis. Despite the gray areas in issues such as War Powers and Authorization for use of Military force, the constitution and US Code are very clear. The President has the established constitutional authority to conduct this program. Not only that, the President clearly followed established statutes in the way he chose to conduct the program. Many quickly dispel the arguments of constitutional presidential power and presidential “War Powers” in a time of war by saying the nature of our nation’s understanding of the Constitution has changed. In response to those that would argue the nature of presidential power has changed over time, Attorney General Alberto Gonzales points out that even as recently as the Clinton administration this type of conduct was acceptable for a President, “During the Clinton Administration, Deputy Attorney General Jamie Gorelick testified before Congress in 1994 that the President has inherent authority under the Constitution to conduct foreign intelligence searches of the private homes of U.S. citizens in the United States without a warrant, and that such warrantless searches are permissible under the Fourth Amendment” (2). President Bush conducted the terrorist program within the scope of his power as determined by the constitution, congressional acts, judicial rulings and historical precedence. Therefore, until the Supreme Court weighs in on the issue, the Terrorist Surveillance Program will have to remain innocent until proven guilty.
Works Cited
“ACLU vs. NSA judgment.” Wikisource, The Free Library. 3 Sep 2006, 14:19 UTC. 4 Sep 2006, 09:35
Halperin, Morton H. “A Legal Analysis of the NSA Warrantless Surveillance Program” (17 Jan, 2006) Washington D.C.
United States Congress. “Authorization for Use of Military Force” Public law 107-40. (18 Sep 2001) Washington D.C.
Fisher, Louis. Constitutional Conflicts Between Congress and the President University of Kansas Press (1991) Lawrence, Kansas
President Regan, Ronald W. “Executive Order 12333–United States intelligence activities” (December 4th, 1981) Washington D.C.
Whitehead, John W. “Forfeiting ‘ENDURING FREEDOM’ for ‘HOMELAND SECURITY’: A constitutional analysis of the USA Patriot Act” American University Law Review 51 (2002): 1081-1153
U.S. Supreme Court. In Re Sealed Case, 310 F. 3d 717, 792 (2002) Washington D.C.
Department of Justice “Legal Authorities Supporting the Activities of the National Security Agency Described by the President”. (19 Jan, 2006) Wasghinton D.C.
Moschella, William E. “Letter in Response to Questions From Chairman Sensenbrenner.” US Department of Justice (March 24, 2006) Washington D.C.
Gonzales, Alberto R. “Prepared Statement of Hon. Alberto R. Gonzales, Attorney General of the United States” US Department of Justice. (February 6, 2006) Washington D.C.
Gonzales, Alberto R. Testimony before the Senate Judiciary Committee. CongressDaily (28 Feb, 2006) Washington, D.C.
Kozak, David C. and Ciboski, Kenneth N. The American Presidency Nelson Hall Inc. (1985) Chicago, Illinois
5th Circuit Court of Appeals. United States Vs. Brown, 484 F. 2d 418 (1973) New Orleans, Louisiana
U.S. Supreme Court. United States Vs. United States District Court (”Keith”), 407 U.S. 197, 308 (1972) Washington D.C.
U.S. Congress. “U.S. CODE TITLE 50 CHAPTER 36—FOREIGN INTELLIGENCE SURVEILLANCE” (1978) Washington D.C.
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