The president's plan for spying on Americans

The National Security Agency is monitoring telephone calls and e-mail messages without first obtaining warrants.

Published December 16, 2005 2:03PM (EST)

When George W. Bush announced Thursday that the White House had struck a deal with John McCain on antitorture legislation, he said the agreement would "make it clear to the world that this government does not torture and that we adhere to the international convention of torture, whether it be here at home or abroad." When Attorney General Alberto Gonzales appeared on CNN Thursday to push the Senate to reauthorize the USA PATRIOT Act, he said the reauthorization bill strikes a careful balance between the needs of law enforcement and the protection of civil liberties.

Do the words mean anything?

As the Bush administration was paying lip service to the rule of law Thursday, the New York Times was preparing to publish an extraordinary report on how the Bush administration has been eavesdropping on the telephone conversations and reading the e-mail messages of hundreds or even thousands of Americans without first obtaining warrants.

The secret spying began not long after 2002, the Times says, when Bush signed an order purporting to authorize it. Under Bush's order, the National Security Agency has been running a "special collection operation" in which it listens in on international phone calls and reads international e-mail messages that originate in the United States.

As the Times explains, the NSA's rules previously allowed the agency to intercept phone calls and e-mail messages transmitted within or between foreign countries. If calls and e-mails originated in the United States, the government generally could monitor them only if it obtained a court order from the Foreign Intelligence Surveillance Court first. And it was the FBI, not the NSA, that usually sought such warrants. The Bush plan was a "sea change," a former senior official with expertise in the area tells the Times. It may also be illegal. Some officials familiar with the Bush program believe that it is "unlawful and possibly unconstitutional," the Times says.

The administration's justification? The attacks of 9/11 were really bad, the United States needs more information about possible terrorists, and John Yoo said we could do it.

Yoo is the former Justice Department lawyer who wrote memorandums in which he opined that the president has virtually limitless power in a time of war and that an interrogation technique would have to cause suffering akin to that caused by a major organ failure before it could be considered torture under U.S. law. The Times says Yoo had a hand in writing memos justifying the secret spying program as well.

Yoo is teaching at UC-Berkeley now. But perhaps the White House can lure him back for a return engagement at Justice, where he can interpret away the words in McCain's torture ban and the PATRIOT Act when the Bush administration decides that it wants to ignore them.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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