Did President Bush Break The Law? Here are the facts.
FISA Was Passed in 1978 to Prescribe Procedures for Physical and Electronic Surveillance.
The Foreign Intelligence Surveillance Act ( FISA) of 1978 prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between or among "foreign powers." (http://www.law.cornell.edu/uscode/html/uscode50/usc_sup_01_50_10_36.html)
The highly classified FISA court was set up in the 1970s to authorize secret surveillance of espionage and terrorism suspects within the United States. Under the law setting up the court, the Justice Department must show probable cause that its targets are foreign governments or their agents. The FISA law does include emergency provisions that allow warrant-less eavesdropping for up to 72 hours if the attorney general certifies there is no other way to get the information. (“Judges on Surveillance Court To Be Briefed on Spy Program,” Washington Post, 12/22/05)
According to the New York Times, Bush Authorized a Secret Spying Program Outside the FISA Systems.
”Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others without the court-approved warrants required for domestic spying, according to government officials. . . Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years.” (“Bush Lets U.S. Spy on Callers Without Courts,” New York Times, 12/16/05)
In January, the Non-Partisan Congressional Research Service Reported that Bush Broke Law
“A Congressional Research Service [CRS] report concludes that: ‘the Bush administration’s limited briefings for Congress on the National Security Agency’s domestic eavesdropping without warrants are ‘inconsistent with the law.’’” (“Report Questions Legality of Briefings on Surveillance,” New York Times, 1/19/06)
Legal Experts Repudiated President Bush’s Claim that He has Inherent Power for Wiretaps as Commander-in-Chief. Congress has the authority to regulate electronic surveillance in the United States. Under FISA the President must seek court approval for electronic surveillance.
A letter to Congress from a group of legal experts including Lawrence Tribe, David Cole, Ronald Dworkin, and others concluded: “But even conceding that the President in his role as Commander in Chief may generally collect "signals intelligence" on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, that is, not subject to the check of statutory regulation.” (“On NSA Spying: A Letter to Congress,” The New York Review of Books, 2/9/06)
The Non-Partisan Congressional Research Service Repudiated President Bush’s Claim that the NSA Program was Authorized after September 11th.
A Congressional Research Service [CRS] report concludes, “that Bush's assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force. ” (“Report Rebuts Bush on Spying; Domestic Action’s Legality Challenged,” Washington Post, 1/7/06)
Contrary to Administration Claims, Congress Was Not Informed of Wiretapping Program – Another Likely Infringement of the Law.
White House Counselor Dan Bartlett claimed: “We went to Congress. We talked to the chairman and the ranking member of the intelligence committee. We talked to the leadership, both Republican and Democrat, House and Senate. These very discussions happened three to four years ago… The fact of the matter is, everybody came to the same conclusion, that what the president was doing was legal and was necessary.” (CNN American Morning, 1/23/06, http://transcripts.cnn.com/TRANSCRIPTS/0601/23/ltm.08.html)
But Senator Jay Rockefeller released a sealed 7/03 letter that warned of “profound oversight issues” with warrant-less spying program: “For the last few days, I have witnessed the President, the Vice President, the Secretary of State, and the Attorney General repeatedly misrepresents the facts. The record needs to be set clear that the Administration never afforded members briefed on the program an opportunity to either approve or disapprove the NSA program. The limited members who were told of the program were prohibited by the Administration from sharing any information about it with our colleagues, including other members of the Intelligence Committees.” ( http://thinkprogress.org/wp-images/upload/Intell.pdf)
And in a separate report from the one described above, the Congressional Research Office concluded that “the Bush administration’s limited briefings for Congress on the National Security Agency’s domestic eavesdropping without warrants are ‘inconsistent with the law.’” (“Report Questions Legality of Briefings on Surveillance,” New York Times, 1/19/06)
Contrary to Administration Claims, NSA Spying Uncovered “No Imminent Plots . . . Inside the United States.”
“The law enforcement and counterterrorism officials said the program had uncovered no active Qaeda networks inside the United States planning attacks. ‘There were no imminent plots - not inside the United States,’ the former F.B.I. official said.” (“Spy Agency Data after 9/11 Let F.B.I. to Dead Ends,” New York Times, 1/17/06)
Contrary to Administration Claims, NSA Spying Program was Broad and Unfocused. o “In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month. […] ‘We’d chase a number, find it’s a schoolteacher with no indication they’ve ever been involved in international terrorism - case closed,’ said one former F.B.I. official…After you get a thousand numbers and not one is turning up anything, you get some frustration.’” (“Spy Agency Data after 9/11 Let F.B.I. to Dead Ends,” New York Times, 1/17/06)
Numerous Legal Scholars and Republican Leaders say President Bush Broke the Law.
CONSTITUTIONAL LAW SCHOLARS AND FORMER GOV. OFFICIALS: “Although the program’s secrecy prevents us from being privy to all of its details the Justice Department’s defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.” (“On NSA Spying: A Letter to Congress,” The New York Review of Books, 2/9/06)
SENATOR LINDSEY GRAHAM: “If he has the authority to go around the FISA court, which is a court to accommodate the law of the war of terror, the FISA Act was–created a court set up by the chief justice of the United States to allow a rapid response to requests for surveillance activity in the war on terror. I don’t know of any legal basis to go around that . There may be some, but I’m not aware of it.” (http://thinkprogress.org/2005/12/18/no-legal-basis/)
SENATOR ARLEN SPECTER: “‘There is no doubt that this is inappropriate,’ said Sen. Arlen Specter (R-Pa.), who favored the Patriot Act renewal but said the NSA issue provided valuable ammunition for its opponents.”(“On Hill, Anger and Calls for Hearings Greet News of Stateside Surveillance,” Washington Post, 12/17/05)
GROVER NORQUIST: “Referring to what some see as a conflict between fighting vicious terrorists and upholding all civil liberties, Norquist said: ‘It’s not either/or. If the president thinks he needs different tools, pass a law to get them. Don’t break the existing laws .’ ” (“Political opposites aligned against Bush wiretaps,” San Francisco Chronicle, 1/26/06)
JOHN MCCAIN : “Wallace: But you do not believe that currently he has the legal authority to engage in these warrant-less wiretaps. McCain: You know, I don’t think so, but why not come to Congress?” (Fox News Sunday, 12/22/05)
CHUCK HAGEL : “Chuck Hagel said he is looking forward to congressional hearings on the legal justification for the secretive National Security Agency program. He remains unconvinced that Bush could allow the program without fully consulting with the courts or Congress.” (“Hagel Urges Bush to Explain Spy Program,” Associated Press, 1/29/06) “If he needs more authority, he just can’t unilaterally decide that that 1978 law is out of date and he will be the guardian of America and he will violate that law.” (This Week, 1/29/06)
CONGRESSMAN BOB BARR: “It’s bad to be spying on Americans apparently in violation of federal laws against doing it without court order. So it's bad all around, and we need to get to the bottom of this. . . And if we're going to say, well, simply because some people think that this is a new threat, we're going to throw the constitution and specific laws out the window and let a president rule by the seat of his pants, is extremely dangerous, and it's uncalled for. The president had full authority to have done this under the law. He apparently chose not to, and we need to find out why? . . . Well, I am because the law provides very vast authority, and for the president, or Frank Gaffney to justify the president saying even though I have the authority under the law to do it, I have to take certain steps, I'm just going to ignore that, puts us in a situation where we've seen in decades past, with Mr. Nixon, with President Lincoln and others, President Truman, when they overstep their bounds, they need to be held accountable.
Americans Disapprove of Bush’s Overreach, According to Polls.
CNN/USA Today (Jan. 20-22): “As you may know, the Bush Administration has been wiretapping telephone conversations between U.S. citizens living in the United States and suspected terrorists living in other countries without getting a court order allowing it to do so. Do you think the Bush Administration was right or wrong in wiretapping these conversations without obtaining a court order?” Right 46%. Wrong 51%. (http://transcripts.cnn.com/TRANSCRIPTS/0512/16/sitroom.03.html)
CBS/NYT (Jan 20-25): “After 9/11, George W. Bush authorized government wiretaps on some phone calls in the U.S. without getting court warrants. Do you approve or disapprove of George W. Bush doing this?” Approve 46%. Disapprove 50%. (http://www.pollingreport.com/terror.htm)
Paid for by MoveOn.org Political Action, http://pol.moveon.org/. Not authorized by any candidate or candidate's committee.
MoveOn.org Civic Action is a 501(c)(4) organization which primarily focuses on nonpartisan education and advocacy on important national issues. MoveOn.org Political Action is a federal political committee which primarily helps members elect candidates who reflect our values through a variety of activities aimed at influencing the outcome of the next election. MoveOn.org Political Action and MoveOn.org Civic Action are separate organizations.