The Truth About Bush's Warrantless Spying

On Saturday, President Bush acknowledged that he had personally authorized a secret warrantless domestic surveillance program more than three dozen times since October 2001. Bush's actions run contrary to the Fourth Amendment to the U.S. Constitution, which forbids "unreasonable searches" and sets out specific requirements for warrants, including "probable cause." They demonstrate a dangerous disregard for the basic liberties that serve as our nation's guiding values. They are also in violation of federal law. The Foreign Intelligence Surveillance Act (FISA) makes it a crime, punishable by up to five years in prison, to conduct electronic surveillance, except as "authorized by and conducted pursuant to a search warrant or court order." Moreover, since 1978, 18 U.S.C. Sec. 2511(2)(f) has directed that Title III and FISA "shall be the exclusive means by which electronic surveillance...and the interception of domestic wire and oral communications may be conducted." The President's actions were not necessary; if he had legitimate concerns about FISA, "the appropriate response would have been to go to Congress and expand it, not to blatantly violate the law." Below, we debunk the administration's attempts to justify Bush's actions.

FACT: BUSH PROGRAM WOULD NOT HAVE PREVENTED SEPTEMBER 11 ATTACKS: Vice President Cheney said of the surveillance program, "It's the kind of capability, if we'd had before 9/11, might have led us to be able to prevent 9/11." This claim is false and sensational. The secret surveillance program authorized by President Bush did not provide the government with any new "capability." The government "already had the capacity to read your mail and your e-mail and listen to your telephone conversations. All it had to do was obtain a warrant from a special court created for this purpose. The burden of proof for obtaining a warrant was relaxed a bit after 9/11, but even before the attacks the court hardly ever rejected requests." Indeed, from 1979 to 2002, the FISA court issued 15,264 surveillance warrants. Not a single warrant application was rejected.

FACT: BUSH PROGRAM DID NOT IMPROVE SPEED OF OBTAINING WARRANTS: Another claim made by members of the administration is that President Bush needed "to skirt the normal process of obtaining court-approved search warrants for the surveillance because it was too cumbersome for fast-paced counterterrorism investigations." This argument has several flaws. For one, the New York Times notes, "government officials are able to get an emergency warrant from the secret court within hours, sometimes minutes, if they can show an imminent threat." More importantly, Section 1805 of the FISA Act states that the government can begin a wiretap as soon as it determines a need and can wait up to
72 hours before obtaining a warrant. The Bush administration "did not seek to do that under the special program."

FACT: DISCLOSURE OF PROGRAM DID NOT UNDERMINE NATIONAL SECURITY: After the New York Times published its story, President Bush and other top administration officials refused to confirm the existence of the surveillance program, arguing that doing so would endanger the American people. Bush said on Friday he wouldn't "comment about the veracity of the story...because it would compromise our ability to protect the people." Press Secretary Scott McClellan and Secretary of State Condoleezza Rice both repeated this line. Within hours, however, President Bush not only confirmed the existence of the program in a Saturday morning address, but provided details about how it worked. In other words, the administration's initial refusal to comment was motivated by public relations, not security, concerns. The scope of surveillance under FISA -- which has long been public -- is the same under President Bush's secretive program.

FACT: RICE UNABLE TO EXPLAIN WHAT GAVE BUSH AUTHORITY TO EAVESDROP WITHOUT WARRANT: Yesterday, Condoleezza Rice was asked a simple question: what is the specific statute or law that gives President Bush the authority to eavesdrop on Americans without a warrant? She had no answer. Instead, Rice referenced unspecified "authorities that derive from his role as Commander in Chief and his need to protect the country," then explained she was "not a lawyer and I am quite certain that the Attorney General will address a lot of these questions." Indeed, Rice said several times that she is "not a lawyer." That fact is irrelevant. Rice was the National Security Adviser when President Bush authorized the NSA program, and said today that she was aware of Bushs decision at the time. Shouldn’t she know why it was legal?

FACT: SOME CONGRESSIONAL INTELLIGENCE OFFICIALS NOT TOLD OF PROGRAM: Yesterday, Condoleezza Rice defended the eavesdropping program by arguing that congressional leaders -- specifically "leaders of the relevant oversight intelligence committees" -- had been briefed on the NSA activities. This is apparently not true. At the time the program was initiated, the Chairman of the Senate Intelligence Committee was former Sen. Bob Graham (D-FL). On Friday's "Nightline," Graham made clear he had never been briefed by the administration about the program: "There was no reference made to the fact that we were going to...begin unwarranted, illegal, and I think unconstitutional, eavesdropping on American citizens." Additionally, in a letter issued last night, House Minority Leader Nancy Pelosi (D-CA) said she had been "advised by Rep. Jane Harman (D-CA), Ranking Democrat on House Intelligence Committee, that the Bush Administration reversed its decision to brief the full House Intelligence Committee on the details of the activities."

FACT: IN CONFIRMATION HEARING, GONZALES DENIED BUSH WOULD ACT BEYOND CRIMINAL STATUTES: In a classified legal opinion, the administration argued the President had the power to order the warrantless search pursuant to his authority as commander-in-chief to wage war against al-Qaeda. During his Attorney General confirmation hearings in January 2005, Sen. Russ Feingold (D-WI) asked Gonzales specifically whether the president "at least in theory [has] the authority to authorize violations of the criminal law under duly enacted statutes simply because he's commander in chief?" After trying to dodge the question for a time, Gonzales issued this denial: "Senator, this president is not ?I ?it is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes." Later, Feingold asked Gonzales to "commit to notify Congress if the president makes this type of decision and not wait two years until a memo is leaked about it." Gonzales replied, "I will advise the Congress as soon as I reasonably can, yes, sir."

Informant: Scott Munson


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Dezember 2005

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