The AP’s Katherine Shrader provides more details in the flap over the Bush administration’s allowing the NSA to conduct electronic eavesdropping within the United States.
Bush Approved Eavesdropping, Official Says
President Bush has personally authorized a secretive eavesdropping program in the United States more than three dozen times since October 2001, a senior intelligence official said Friday night.
[…]
Bush on Friday refused to discuss whether he had authorized such domestic spying without obtaining warrants from a court, saying that to comment would tie his hands in fighting terrorists. In a broad defense of the program put forward hours later, however, a senior intelligence official told The Associated Press that the eavesdropping was narrowly designed to go after possible terrorist threats in the United States. The official said that, since October 2001, the program has been renewed more than three dozen times. Each time, the White House counsel and the attorney general certified the lawfulness of the program, the official said. Bush then signed the authorizations.
During the reviews, government officials have also provided a fresh assessment of the terrorist threat, showing that there is a catastrophic risk to the country or government, the official said. “Only if those conditions apply do we even begin to think about this,” he said. The official spoke on condition of anonymity because of the classified nature of the intelligence operation. “The president has authorized NSA to fully use its resources — let me underscore this now — consistent with U.S. law and the Constitution to defend the United States and its citizens,” the official said, adding that congressional leaders have also been briefed more than a dozen times.
[…]
The surveillance, disclosed in Friday’s New York Times, is said to allow the agency to monitor international calls and e-mail messages of people inside the United States. But the paper said the agency would still seek warrants to snoop on purely domestic communications — for example, Americans’ calls between New York and California.
[…]
The intelligence official would not provide details on the operations or examples of success stories. He said senior national security officials are trying to fix problems raised by the Sept. 11 commission, which found that two of the suicide hijackers were communicating from San Diego with al-Qaida operatives overseas. “We didn’t know who they were until it was too late,” the official said.
Some intelligence experts who believe in broad presidential power argued that Bush would have the authority to order these searches without warrants under the Constitution. In a case unrelated to the NSA’s domestic eavesdropping, the administration has argued that the president has vast authority to order intelligence surveillance without warrants “of foreign powers or their agents.” “Congress cannot by statute extinguish that constitutional authority,” the Justice Department said in a 2002 legal filing with the Foreign Intelligence Surveillance Court of Review.
Other intelligence veterans found difficulty with the program in light of the 1978 Foreign Intelligence Surveillance Act, passed after the intelligence community came under fire for spying on Americans. That law gives government — with approval from a secretive U.S. court — the authority to conduct covert wiretaps and surveillance of suspected terrorists and spies. In a written statement, NSA spokesman Don Weber said the agency would not provide any information on the reported surveillance program. “We do not discuss actual or alleged operational issues,” he said.
Elizabeth Rindskopf Parker, former NSA general counsel, said it was troubling that such a change would have been made by executive order, even if it turns out to be within the law. Parker, who has no direct knowledge of the program, said the effect could be corrosive. “There are programs that do push the edge, and would be appropriate, but will be thrown out,” she said.
Prior to 9/11, the NSA typically limited its domestic surveillance activities to foreign embassies and missions — and obtained court orders for such investigations. Much of its work was overseas, where thousands of people with suspected terrorist ties or other valuable intelligence may be monitored.
This clarifies things quite a bit and strengthens my view that, in addition to being prudent on national security grounds, this activity was indeed within the bounds of the law (the Foreign Intelligence Surveillance Act).
The fact that there have been “three dozen” separate authorizations in a relatively short period would seem an indication that the administration was relying on their authority under § 1811:
§ 1811. Authorization during time of war
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.
As a technical matter, Congress has not declared war since doing so against Germany and Italy on December 11, 1941 with S. J. Res. 119 and 12o, respectively. Practically, however, Congress authorized the president to go to war right after 9/11 with Senate Joint Resolution 23, the “Authorization for Use of Military Force,”on September 14, 2001 resolving:
That the 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
[…]
Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
With respect to Iraq, Congress issued a “Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq” on October 2, 2002.
Further, as I noted yesterday, § 1802 allows the president, through the Attorney General, to conduct warrantless searches so long as neither party is a “United States person” within the meaning of the law.
Related:
- Leslie H. Gelb and Anne-Marie Slaughter, “Declare War: It’s time to stop slipping into armed conflict,” Atlantic Monthly, November 2005.
- The ‘Lectric Law Library’s Legal Lexicon On FOURTH AMENDMENT
Previously at OTB:
- Specter and McCain Call for Investigation of NSA Spying
- Bush Allowed Warrantless Phone Surveillance After 9/11
Correction: Relying on memory, I originally had the declaration against Germany dated December 9. I’ve corrected the date and supplied a link after an emailed tip.
