War Room

Spying on Americans: Did Bush break the law?

The New York Times reported Friday that, in 2002, George W. Bush authorized the National Security Agency to begin monitoring -- without warrants -- telephone calls and e-mail messages originating in the United States. After an initial dodge, the president has now admitted as much.

Two questions follow. Did the president break the law? And why did he do what he did? The answer to the first question seems self-evident. The answer to the second does not.

The Foreign Intelligence Surveillance Act of 1978 sets out the rules for monitoring electronic communications. Those rules are clear. Except during the first 15 days after a declaration of war by Congress, the executive branch cannot monitor electronic communications that originate in the United States without obtaining a warrant from the Foreign Intelligence Surveillance Court.

Members of the Bush administration may have thought FISA's warrant requirement foolish or even "quaint" in the days after 9/11. They may have thought -- as they apparently did -- that the warrant requirement represented a constitutionally impermissible limit on the president's power as commander in chief. There were ways to address such concerns. The administration could have gone to Congress to ask that FISA's warrant requirement be amended. Or the administration could have gone to the courts to ask that the warrant requirement be overturned.

It did neither. The administration simply ignored the other branches of government and took it upon itself to do what it wanted to do. It violated the Foreign Intelligence Surveillance Act. And in the process, it obliterated the notion of separated powers built into the U.S. Constitution. As Sen. Lindsey Graham, a Republican, said over the weekend: "Even in a time of war, you have to follow the process, because that is what a democracy is all about: a process." Graham said he couldn't think of any legal justification for making an end run on FISA. Another Republican, Senate Judiciary Committee Chairman Arlen Specter, proclaimed Bush's actions "wrong, clearly and categorically wrong."

Specter said his committee will hold hearings on the spying program early next year, and that the legality of the president's actions is a matter that will need to be "examined." As we said at the outset, there's another question to examine: Why did Bush do it?

In his weekly radio address Saturday, the president said that monitoring electronic communications is "a vital tool in our war against the terrorists" and "critical to saving American lives." We don't doubt that, and neither did Congress in 1978: In adopting the Foreign Intelligence Surveillance Act, it gave the executive branch the power to engage in electronic surveillance. What the president hasn't explained so far is why the FISA process isn't good enough. And indeed, it is hard to see how it isn't.

Maybe the president thought it was too hard to get warrants from the Foreign Intelligence Surveillance Court. But as Josh Marshall notes, it wasn't hard: In more than 25 years, the court has rejected a tiny handful of the thousands upon thousands of warrants the executive branch has requested. So maybe the president thought it took too long to get warrants from the court. But as Knight Ridder notes, the FISA allows the executive branch to begin eavesdropping immediately so long as it seeks a warrant from the court within 72 hours afterward.

So what did the president think? Why did he think he needed to go around the rules set forth by Congress in order to achieve the objective of keeping Americans safe? It's hard to come up with an answer to that question. And in fact, it doesn't matter. If the procedures set forth in FISA weren't good enough for this administration, there were ways to change them. Ignoring them -- and in the process, the courts, Congress and the Constitution -- wasn't one of them.

Posted in: George W. Bush

Former Bush cabinet member as Obama's running mate?
Politico reports that a Republican who served in George W. Bush's cabinet during his first term has been mentioned by Barack Obama's search team as a potential running mate.
GOP candidates may skip convention
Most of the Republicans in the hottest Senate races say they aren't going to St. Paul to celebrate John McCain (and send off George W. Bush).
Rove map shows Obama beating McCain
A series of Electoral College maps produced by the company run by the man once known as "Bush's Brain" has Barack Obama narrowly winning the presidency.
The John Edwards "love child" story
Yes, the original report comes from the National Enquirer, but new information lends additional credibility to its article.

Current Salon Politics Stories

’08 Update

07:20 EDT, July 26, 2008
A tale of two campaigns Obama had a magical week, McCain had a bad one, but the polls remain remarkably close.
Joan Walsh
216
20:22 EDT, July 25, 2008
Former Bush cabinet member as Obama's running mate? Politico reports that a Republican who served in George W. Bush's cabinet during his first term has been mentioned by Barack Obama's search team as a potential running mate.
War Room
41
16:10 EDT, July 25, 2008
Rove map shows Obama beating McCain A series of Electoral College maps produced by the company run by the man once known as "Bush's Brain" has Barack Obama narrowly winning the presidency.
War Room
17
14:57 EDT, July 25, 2008
The John Edwards "love child" story Yes, the original report comes from the National Enquirer, but new information lends additional credibility to its article.
War Room
74
12:24 EDT, July 25, 2008
McCain memo is riddled with inaccuracies McCain's campaign claims to have debunked "three prevailing myths about Obama's foreign policy," but it's the McCain camp that isn't connected to reality.
War Room
23

Salon Politics Blogs

Recent Posts

GOP candidates may skip convention
Most of the Republicans in the hottest Senate races say they aren't going to St. Paul to celebrate John McCain (and send off George W. Bush).
Rove map shows Obama beating McCain
A series of Electoral College maps produced by the company run by the man once known as "Bush's Brain" has Barack Obama narrowly winning the presidency.
The John Edwards "love child" story
Yes, the original report comes from the National Enquirer, but new information lends additional credibility to its article.
Previous Posts…

War Room RSS Feed

Posts by date

July 2008
SuMoTuWeThFrSa
12345
6789101112
13141516171819
20212223242526
2728293031

About War Room

War Room is written and edited by Alex Koppelman, with contributions from Salon reporters around the country.

Daily Newsletter

Get Salon in your mailbox!