NSA Headquarters, Fort Meade, Md. (NSA photo)
Trifler, Fibber, Sophist, Spy
How Bush Abolished the Constitution
Pierre Tristam/December 20, 2005
James Bamford is a codebreaker in his own right, an investigative reporter of the Seymour Hersh kind. His latest is the profile of John Rendon and the Rendon Group, chief flackers for the Bush administration and wag-the-dog manipulators of world opinion (the Rendon Group’s bogus storylines helped sell the Iraq war to a too-trusting American public). But six years ago, in the waning days of the istration, Bamford wrote a stunning short piece for the Washington Post about the NSA, the National Security Agency that, as the New York Times revealed on Monday, has been spying on Americans, on Bush’s orders, since 2001, and to the tune of perhaps 500 eavesdrops at any given time. Bamford (who later published one of the only books on the NSA) begins his Post piece by describing a massive NSA installation in Yorkshire, England, the largest of the agency’s many eavesdropping operations around the world. By 1999, the cold war long over, it should have been shrinking. Instead, it was expanding vastly. (By then the NSA, by far the largest intelligence agency in the western world, numbered 38,000 employees to the CIA’s 17,000). “People in Europe and the United States are beginning to ask why,” Bamford wrote in 1999. “Has the NSA turned from eavesdropping on the communists to eavesdropping on businesses and private citizens in Europe and the United States?”
The question was answered a few days ago, and confirmed by the president in the last two days. But how. Monday’s White House news conference showed President Bush at his craven worst. He defended his decision to authorize spying by citing his reliance on — as he put it — “the constitutional authority to protect our country. Article II of the Constitution gives me that responsibility and the authority necessary to fulfill it.” That’s the sort of misleading inaccuracy you’d expect from a fast talker in a high school debating match. You don’t expect it from a president, though this president has lowered the bar of credible discourse so much that American political discourse usually reeks of barroom skank. Article II does not give the president a blank check to do as he will, in time or peace or war. Article II is pretty specific. It lays out electoral law, qualifications, matters of succession. It states with unequivocal clarity that “President shall communicate to Congress” by various means. It spells out the Oath of Office, which maybe the president had in mind when he referred to the “responsibility and the authority necessary” to protect the country. The Oath, however, says nothing about abrogating all other constitutional powers in deference to the presidency, no matter what the circumstances. To the contrary: “I do solemnly swear(or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” President Bush is confusing protecting his power and self-fulfilling prerogatives (see “enemy combatants,” secret prisons, open-ended detentions without charge, etc.) with protecting and defending the Constitution. Note that Article II considers the president’s responsibility toward the Constitution to be supreme—beyond his responsibility to the nation: Principle above immediacy, law above expediency. In his news conference Monday Bush simply rewrote the Constitution to suit, soothe and sanction his crimes.
Section 2 of Article II does refer to the president’s role as Commander-in-Chief. But here’s where this president, like every president since Ronald Reagan, has expressly misread this clause, which says nothing about the president being Commander-in-Chief of the nation—of people like you and me, of the school bus driver, of Exxon’s employees, of anybody not wearing a military uniform. “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States.” That’s all. Grant him the Air Force and the Marines on top of that. But no one, and nothing, else is under his military command. (John Lukacs, the historian, wrote in 2003 of the “unnecessary and unseemly habit” of president’s “quite wrong” salutes as they step off planes or choppers, “especially George W. Bush, who steps off his plane and cocks a jaunty salute.”) What Section 2 of Article II does require the president to do is seek the advice and consent of Congress on various matters in executive and foreign policy purviews. Blank checks? Extraordinary powers in time of war? Executive privilege? Executive prerogative? Nada, nada, nada, nada. One last thing Article II does address: presidential impeachment in case of conviction of “Treason, Bribery, or other high Crimes and Misdemeanors.”
So much for the president taking cover behind Article II. But if his constitutional cover was so poorly thought out, you can imagine what his lesser defenses amounted to. He claimed, in the second prong of his papier maché defense, that “of course, we use FISAs.” That’s a reference to the Foreign Intelligence Surveillance Act of 1978. “But FISA is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect.” FISA allows secret monitoring and surveillance as long as a secret court set up under FISA’s authority provides warrants for such surveillance. The secret court has received 19,000 requests for such warrants since 1979. It has honored all but five of them. It’s not difficult to get a warrant, immediately, or to apply a warrant retroactively—an absurd allowance in the FISA law that renders it almost toothless as a tool for oversight, but let that one pass. To Bush, even FISA’s rickety requirements weren’t loose enough. He wanted it all, complete authority to spy, untrammeled, because “What is needed in order to protect the American people is the ability to move quickly to detect.” So he ordered it. “Now, having suggested this idea,” Bush said, “I then, obviously, went to the question, is it legal to do so? I am — I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely. As I mentioned in my remarks, the legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress.”
We’ve already dealt with his claim that the authority is derived from the Constitution. What of the U.S. Congress? He answered the question himself. He won “authorization of force,” not—again—a blank check to override the nation’s domestic laws. Otherwise, why even bother with a Patriot Act, with FISA? Bush’s reliance on FISA (both as an obscure acronym from which he can derive a bit of authority, thanks to Americans’ strange trust of acronyms, but as a legal buttress, too) should have raised red flags in anyone’s memory. What, exactly, is the Foreign Intelligence Surveillance Act, and why was it adopted in the first place? Here, James Bamford’s 1999 piece is a vital dot-connector:
In the mid-1970s, the Senate and House Select Committees on Intelligence were created in part as a result of NSA violations. For decades, the NSA had secretly and illegally gained access to millions of private telegrams and telephone calls in the United States . The agency acted as though the laws that applied to the rest of government did not apply to it. Based on the findings of a commission appointed by President Ford, the Justice Department launched an unusually secret criminal investigation of the agency, known only to a handful of people. Senior NSA officials were read Miranda warnings and interrogated. It was the first time the Justice Department had ever treated an entire federal agency as a suspect in a criminal investigation. Eventually, despite finding numerous grounds on which to go forward with prosecution, Justice attorneys recommended against it. "There is the specter," said their report, which the government still considers classified, "in the event of prosecution, that there is likely to be much 'buck-passing' from subordinate to superior, agency to agency, agency to board or committee, board or committee to the President, and from the living to the dead."
As a result of the investigations, Congress in 1978 passed the Foreign Intelligence Surveillance Act (FISA), which stated in black and white what the NSA could and could not do. To overcome the NSA's insistence that its activities were too secret to be discussed before judges, Congress created a special federal court, the Foreign Intelligence Surveillance Court, to hear requests for warrants for national security eavesdropping. In case the court ever turned down an NSA request, the Foreign Intelligence Surveillance Appeals Court was created. It has never heard a case.”
In other words, President Bush on Sunday and Monday—like his many defenders in the punditocracy and the bloggosphere—has been relying on FISA to defend his warrantless domestic spying; relying, that is, on the very law created in order to counter exactly this sort of abuse back in the 1970s. It doesn’t stop here. To further dig his grave while seemingly adding a brick or two to his schlepping on a hill, Bush used the McCain tactic: It’s a new world out there, everything changed with “September the 11 th,” it is therefore necessary to stay ahead of the terrorists by getting ahead of some of the immediate constraints. He makes that argument in what was the most incoherent and self-defeating response of Monday’s news conference, after he was asked “why, in the four years since 9/11, has your administration not sought to get changes in the law instead of bypassing it, as some of your critics have said?
THE PRESIDENT: I appreciate that. First, I want to make clear to the people listening that this program is limited in nature to those that are known al Qaeda ties and/or affiliates. That’s important. So it’s a program that’s limited, and you brought up something that I want to stress, and that is, is that these calls are not intercepted within the country. They are from outside the country to in the country, or vice versa. So in other words, this is not a—if you’re calling from Houston to L.A. , that call is not monitored.
Not exactly. The Standard Times in new Bedford, Mass., reported on Dec. 17 that agents of the Homeland Security Department showed up at a University of Massachusetts-Dartmouth students’ home to inquire about an inter-library loan request he’d made for… Mao’s Little Red Book. Two professors who reported the incident to the paper “said the student was told by the agents that the book is on a ‘watch list,’ and that his background, which included significant time abroad, triggered them to investigate the student further.” If Homeland Security agents are devoting that much attention to an innocuous student’s term paper, it is unlikely that the NSA, with its history of acting above the law, and President Bush, with his messianic sense of being the law, are limiting the surveillance’s scope to foreigners. Bush concedes as much in his next sentence, when he slouches toward his incoherent self-defense on legal grounds and invokes the make-it-up-as-you-go edicts of Alberto Gonzales:
And if there was ever any need to monitor, there would be a process to do that. I think I’ve got the authority to move forward, Kelly. I mean, this is what—and the Attorney General was out briefing this morning about why it’s legal to make the decisions I’m making. I can fully understand why members of Congress are expressing concerns about civil liberties. I know that. And it’s—I share the same concerns. I want to make sure the American people understand, however, that we have an obligation to protect you, and we’re doing that and, at the same time, protecting your civil liberties. Secondly, an open debate about law would say to the enemy, here is what we’re going to do. And this is an enemy which adjusts. We monitor this program carefully. We have consulted with members of the Congress over a dozen times. We are constantly reviewing the program. Those of us who review the program have a duty to uphold the laws of the United States , and we take that duty very seriously.
But there’s another problem with the NSA that the president naturally and conveniently won’t go into, because it demolishes his allegation that “we are constantly reviewing the program” on legal grounds and for civil libertarian reasons: The NSA operates under constraints established by Congress in the late 1970s, long before the age of email, faxes, the Internet. “For example,” Bamford wrote in 1999, “the 1978 FISA prohibits the NSA from using its ‘electronic surveillance’ technology to target American citizens. But that still leaves open the possibility that Britain's GCHQ or another foreign agency could target Americans and turn the data over to the NSA.” If the United States can use rendition of prisoners, sending them to foreign prisons for a work-un in exchange for the information, why wouldn’t rendition work in reverse, with information, and with such compliant allies? “Another problem,” Bamford wrote, “is that the FISA appears not to apply to the NSA's monitoring of the Internet. While covering such things as ‘wire’ and ‘radio’ communications, there is no mention of ‘electronic communications,’ which is the legal term for communicating over the Internet as defined by the Electronic Communications Privacy Act of 1986. Worse, FISA applies only ‘under circumstances in which a person has a reasonable expectation of privacy.’”
In sum, Bush is once again relying on the law, when he relies on it at all, by what the law omits. The rest, he merely invents. And when he’s asked the one thing that would give all these liberty-busting theatrics at least some credibility—has this netted any arrests, any worthy investigations, any leads in the war on terror?—he punts. It was one of the last questions of the dismally well-behaved news conference: “Could you tell us about the planned attacks on the U.S. that were thwarted through your domestic spying plan?” The president’s answer: “No, I'm not going to talk about that, because it would help give the enemy notification and/or, perhaps, signal to them methods and uses and sources.” One question was not asked. Who, Mr. President, is the enemy? The NSA’s ears have the answer: Everyone.
Correction: The original version of this article made reference to a University of Massachusetts-Dartmouth students claiming that Homeland Security Department agents showed up at his door to interrogate him about a copy of Mao's Little Red Book the student had requested through inter-library loan. The information was based on a report in the December 17 Bedford, Mass., Standard Times. On Dec. 24, the Standard Times reported that the student had made up the story. The article above has not been altered only for contextual reasons: The example was used to make the point that "it is unlikely that the NSA, with its history of acting above the law, and President Bush, with his messianic sense of being the law, are limiting the surveillance’s scope to foreigners." That point was confirmed in a New York Times report on Dec. 23, revealing that "The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged," and that "It was collected by tapping directly into some of the American telecommunication system's main arteries." [With grateful acknowledgment to D.P. and W.P.]