Shortly after the New York Times broke the news that the Bush administration has been engaged in warrantless spying on American citizens, the White House assured us all that we had nothing to worry about: Although the National Security Agency was spying on Americans in violation of an act of Congress and without a warrant from the Foreign Intelligence Surveillance Court, no eavesdropping ever occurred unless somebody got approval from a "shift supervisor" at the NSA first.
We didn't find that entirely comforting: With all due respect to the middle managers of the federal government, a shift supervisor at the NSA isn't exactly a disinterested party and isn't much at all like the impartial federal judges who are supposed to be signing off on such things. But even if we had been able to get our minds around the idea of the NSA as some sort of one-stop shopping for the checks and balances required by the Constitution and the Foreign Intelligence Surveillance Act, we'd have some additional cause for concern now: As the New York Times reports today, officials at the NSA may have launched at least some aspects of their secret domestic spying program even before they got approval from George W. Bush.
The revelation is hinted at in some previously classified and highly redacted correspondence between House Minority Leader Nancy Pelosi and Gen. Michael V. Hayden, the former head of the NSA who is now Bush's No. 2 intelligence official. In a letter to Hayden written exactly one month after the attacks of 9/11, Pelosi asked "whether and to what extent the National Security Agency has received specific presidential authorization for the operations you are conducting." Hayden's response: The NSA was acting on its own. "I used my authorities to adjust NSA's collection and reporting," he said.
Bush did not sign his executive order authorizing the spying program until early 2002. In the interim, Congress adopted the Patriot Act, a measure that, as former NSA chief Bobby Inman notes, would have been the logical home for congressional authorization for the domestic spying program if the Bush administration had bothered to ask Congress for the power it assumed for itself.