Official: Bush Approved Eavesdropping

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:

Previously at OTB:

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.

FILED UNDER: Intelligence, Terrorism, , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Steve Plunk says:

    This is already being played as a scandal by those who dislike the President. Stubstance doesn’t matter just creating a distraction and a potential black mark on the administration’s record of achievement.

    Without a doubt the decision to take these steps was reviewed by competent if not outstanding attorneys. I would conclude they felt it was legal to approve the activity. Others may disagree but there is no scandal here.

  2. Herb says:

    Today, President Bush stated without reservation the the revealing of the secretative NSA intelligence program was a violation of the law. The time is now for the US Government to charge and prosecute the NYT, the writers of the story, and others associated with the story. For to long now, the so called press has gotten away with violations of the laws in the name of “free speech” without concern of our national defence.
    There is no doubt that the NYT revealed this classified information in violation of the law and therefore needs to be brought to justice for their misdeeds and wanton disregard for the law.

    The Media has had the best of treatment and have managed to subvert the laws of our country with total disregard to our National Securty. The time for this un American activity to stop is NOW.

  3. James Joyner says:

    Herb: Pursuant to the Pentagon Papers case and other judicial rulings, it is absolutely within the NYT’s right to publish this story. The ones who are legally culpable are the intelligence officials who violated their trust and went to the press.

  4. Herb says:

    James:

    Your knowledge of the law is greater than mine and I have no doubt that you are correct.

    However the NYT does have to accept the responsibility for revealing this classified information. If the NYT had not revealed this story, we would not be discussing it today and no one would even know about it. The NYT has wantonly revealed classified information and must be held accountable for their misdeeds and total disregard for our countries National Securty.

    While I understand your position on this James. There must be something we can do to protect our country from those who “just don’t care” and seek publicity for their personal gain.

  5. Anderson says:

    I need to get up to speed on the legal issues here, but I don’t understand how the Fourth Amendment can be suspended by a statute, even assuming that the feds complied with the latter.

    Maybe the story here is really Congressional overreaching rather than the executive variety?

  6. James Joyner says:

    Anderson: I’m afraid the 4th Amendment has been vitiated by a whole series of court decisions which I mostly disagree with. See, for example, The ‘Lectric Law Library’s Legal Lexicon On FOURTH AMENDMENT.

    In this particular case, though, I don’t think the spirit of the 4th has been violated insomuch as:

    No one’s house or person is being violated in any physical sense
    The “searches” are likely reasonable (remember, the 4th only prohibits “unreasonable” searches, which fuzzies things up a lot)
    No evidence obtained through these “searches” would be admissible in court

    I reserve the right to change my mind here if it turns out there are Jose Padilla-type violations going on here. But allowing something that noone would object to if the persons happened to be in Jordan to occur does not necessarily become bad if they happen to be in Virginia.

  7. M. Murcek says:

    Funny how the same people who writhe and scream when the topic of a Supreme Court nominee perhaps being a “strict constructionist” comes up, become Constitutional absolutists if they think they can tar the President over some obscure and specific finding which, as James has noted, was vetted by an army of government lawyers before the President ever picked up his pen.

    Losers…

  8. spencer says:

    The problem with the points I see here is that there does not seem to be any need for these actions. There is a legal system for the administration to get approvat for these “wire-traps?” through a special court system that has never rejected a request to monitor commo by Americans.

    Consequently, doing the monitoring without legal autority did nothing to improve US security.

    So the real point is that the administration broke the law for no apparent gain. Why? And of even more importance, why defend breaking the law when you can not even defend it on the grounds of US security?

  9. James Joyner says:

    spencer: It’s far from clear that the law was broken, as noted in the post. Further, as noted in Bush Allowed Warrantless Phone Surveillance After 9/11, there may be perfectly good reasons why getting warrants was not feasible.

  10. Anderson says:

    JJ, I’m looking at section 1802, and I don’t think it says what you seem to say it says.

    The requirement that a “United States person” not be a target is only one of 3 requirements. Note the word “and” at the end of 1802(a)(1)(B).

    Subpart (A) excludes terrorist groups from its definition of “foreign powers.” See sec. 1801.

    So I guess I need explained to me how section 1802 legalizes what the WH has done.

  11. Herb says:

    Spencer:

    You said:

    “Consequently, doing the monitoring without legal authorty did nothing to improve US securty”

    How do you know that securty was not improved?

    It seems to me that that information was highly classified and if you know that your statement was fact by some inside method, then “You are devulging classified information”

    I would assume that you are talking here with emotion and not fact.

    Anderson: Why don’t you close your clapper trap and realize that the entire program was to protect yourself as well as the American people from further terrorist attacks like 9/11. Or are one of those that would curse out the person who gave you a million dollars with no strings attached.

    Some people are never happy with anything.

  12. Anderson says:

    Herb, if you’re happy in principle with a dictatorship so long as it keeps you safe, that is your right, and I can hardly expect you to respect my disagreement with you.

    This country was founded by men who had suffered the arbitrary power of government and who intended to protect against it. Conservatives used to honor the Founders’ ideas as well as their memory, but as I’ve noted, there are few conservatives left in 2005.

  13. Herb says:

    Anderson:

    Is your comment part of your Yankee Doodle, Red, white and Blue speech. If you don’t care about securty and being blown up along with the rest of your family, then that is your right and I hardly expect you to respect my disagreement with you.

    However, I do expect you to respect other Americans understanding and desire to have the securty from those who would destroy our way of life. If you are only thinking of yourself, then, take your high and mighty know it all thoughts and speeches elsewhere. There is no place for those who only think of themselves in wartime and cry out about the lack of your so called rights when we have those who are trying and doing everything possible to protect us.

  14. MikeAdamson says:

    Anderson…I believe that 1801 includes international terrorist groups as foreign powers. It seems to me that 1802 (a)(1)(B) is the clause that will determine the legalities in terms of this law.

  15. hilzoy says:

    Hi (and nice to meet you last night 😉 ) — I, too, don’t think this surveillance was legal under sec. 1802. For one thing, sec. 1802 holds that the AG has to certify in writing that “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party”. So I don’t see how it could be used to place citizens (or legal residents) under surveillance.

    I also don’t see why it was necessary, given the emergency provisions in sec. 1805, which allow the AG to authorize surveillance without a wiretap, provided he applies for a warrant within 72 hours. That, I would think, covers those situations in which an agency has to act too quickly to get a warrant, and it does so in the best way I can think of: allowing flexible government action while ensuring that a judge will have a chance to pass on the legitimacy of the surveillance.

    Finally, about the question whether the use of force resolution counts as a ‘declaration of war’ under the statute: here I think it’s relevant that FISA was written in 1978, after Korea, Vietnam, etc. The drafters could quite easily have said ‘when the country is at war’, and not ‘following a declaration of war by the Congress’. They had to have been aware of the possibility of undeclared wars. That they chose to say ‘following a declaration of war by thee Congress’ seems more likely to be an intentional restriction than it would have been had FISA been drafted right after WW2, for instance.