Big Brother is watching you (and blowing it)
Bush's illegal wiretapping program isn't just reckless and immoral -- it will actually hurt the "war on terror."
By Elizabeth de la Vega
Read more: Bush, Opinion, National Security Agency, FISA
Jan. 18, 2006 | OK, everyone who has studied the Unitary Executive Theory of the Presidency, raise your hand. Anyone? Anyone?
If you are not raising your hand, you're not alone. As regular readers of Tomdispatch are aware, only recently has the world received notice that President Bush's "I can do anything I want" approach to governance has a name: the Unitary Executive Theory of the Presidency. Not having heard of this concept, and thinking perhaps that I had missed something in constitutional law, I decided to survey a random sampling of attorneys about it. The group included civil practitioners, prosecutors, a federal judge, a former federal prosecutor who has a Ph.D. as well as a J.D., defense attorneys and a U.S. magistrate. The precise question was, "When did you first hear about the Unitary Executive Theory of the Presidency?" Most said, "The past few weeks," but my favorite was, "A few seconds ago, when you asked about it." All agreed that the term does not appear in the U.S. Constitution and that, the last time they checked, we still had three branches of government.
Discussion of this "theory" has been prompted, of course, by President Bush's recent confession to a crime: repeatedly authorizing the National Security Agency to intercept domestic electronic communications for foreign intelligence purposes without a court order in violation of the Foreign Intelligence Surveillance Act. FISA contains no exception for the president, but Bush claims his action is legal because: 1) Congress endorsed it in its Sept. 18, 2001, Authorization to Use Military Force in response to Al Qaida's September 11th attacks, and 2) he has inherent power as chief executive to act as he deems necessary in wartime. Many scholars, including Georgetown University's David Cole and former New York state Rep. Elizabeth Holtzman have thoroughly debunked these arguments.
You don't have to be a constitutional scholar to know that Bush's legal justifications are weak. You merely have to consider the administration's duplicitous conduct. The Bush team has deliberately concealed this program, not only from the public and Congress, but, most damning of all, from the very agency that is responsible for executing the laws of this country: the Department of Justice. It has been widely reported that even Bush appointees, such as former Deputy Attorney General James B. Comey, and possibly former Attorney General John Ashcroft, objected to the NSA's wide-ranging warrantless spying. After 20 years as a federal prosecutor, I am absolutely certain that the vast majority of career attorneys at DOJ and criminal prosecutors from U.S. Attorneys' Offices around the country, as well as federal law enforcement agents, would have refused to participate knowingly in this program. Bush and his coterie knew that their legal arguments were weak and intellectually dishonest, if not ludicrous, so rather than making their case honestly, even to their own people, they avoided dissent by acting in secret and affirmatively misleading the entire country. Using a tragically familiar modus operandi, Bush has carried out his unlawful spying scheme by acting not as a unitary executive (whatever that is), but as a solitary executive -- as if the president knows best.
To understand the extent and complexity, not to mention frightening consequences, of Bush's deception with regard to the NSA's warrantless surveillance, it is necessary to consider some of the practicalities of FISA, both before and after it was changed by the Patriot Act.
As anyone who took high school civics knows, the government must get a warrant before conducting electronic surveillance on people within the United States. But before the Sept. 11 attacks, few citizens knew that law enforcement had to follow different procedures to get that warrant, depending on the investigative purpose. If the purpose was chiefly to aid a criminal investigation, such as in a drug or bribery case, the agents had to get what was called a Title III warrant from the U.S. District Court. If the object was primarily to get foreign intelligence on someone within the U.S., regardless of whether they were communicating with someone in or out of the country, agents had to go to a secret court called the FISA court. Under no circumstances could an agency electronically eavesdrop on a person within the United States without such a warrant, but if people were outside the country, the National Security Agency could electronically intrude on their communications -- such as phone calls, e-mails or faxes -- without getting any court authorization. So, if the whole communication was outside the U.S., NSA could spy to its heart's content.
If a criminal case was at stake, the FBI or whichever agency was involved needed a Title III criminal warrant; and if it was a foreign intelligence case, the FBI needed a FISA warrant. What was the difference between the two? Other than the difference in purpose -- criminal investigation vs. foreign intelligence -- the main differences were threefold. First, the amount of proof needed to get a FISA warrant was less. Second, with a FISA warrant, the person surveilled rarely could seek judicial review because he would normally have had no way of finding out that it had even happened. The third difference flowed from the first two: Because of the relaxed standard of proof and the unavailability of review, foreign intelligence agents were not allowed to share their information with criminal agents, even if they were in the same agency. That barrier between criminal and foreign intelligence agents was called the "FISA wall."
After the 9/11 attacks, however, as part of its push for the Patriot Act, administration representatives, mainly from the DOJ, proposed numerous changes to the FISA law that they argued were necessary due to both technological and societal developments since 1978. In particular, they wanted to break down the FISA wall to allow for greater sharing of information in order to avoid the numerous communication snafus that may have prevented discovery of the plans for the 9/11 attacks. Ultimately, the administration received most of its desired changes. Break down the "FISA wall"? You got it. Roving wiretaps? You got it. Administrative subpoenas to libraries? You got it.
And that was just the first round. Since October 2001, the administration has obtained passage of three rounds of additional changes to FISA. All the requested changes have led to considerable public debate about the threat to constitutional protections posed by relaxing the rules for getting electronic surveillance warrants as well as the increase in tools available to law enforcement. Nevertheless, for the most part, Congress has acceded to whatever requests for changes to FISA the Bush administration has made.
Next page: This illegal surveillance is a prosecutor's nightmare
