Spying on Americans: Did Bush break the law?

"Even in a time of war, you have to follow the process."

By Tim Grieve

Published December 19, 2005 5:55AM (EST)

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.

Tim Grieve

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

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