NSA Spying on Americans

The NY Times recently revealed that in 2002 President Bush authorized the National Security Agency-normally responsible for foreign electronic intelligence gathering-to eavesdrop on Americans without court approval:

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily 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 in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

"This is really a sea change," said a former senior official who specializes in national security law. "It's almost a mainstay of this country that the N.S.A. only does foreign searches."

President Bush is catching a lot of heat in the wake of the news:

Congressional leaders of both parties called for hearings and issued condemnations yesterday in the wake of reports that President Bush signed a secret order in 2002 allowing the National Security Agency to spy on hundreds of U.S. citizens and other residents without court-approved warrants.

The news had a direct impact on the Patriot Act debate:

Disclosure of the NSA plan had an immediate effect on Capitol Hill, where Democratic senators and a handful of Republicans derailed a bill that would renew expiring portions of the USA Patriot Act anti-terrorism law. Opponents repeatedly cited the previously unknown NSA program as an example of the kinds of government abuses that concerned them, while the GOP chairman of the Senate Judiciary Committee said he would hold oversight hearings on the issue.

The Washington Post also reports in the same article that the surveillance has been more extensive and began earlier then was revelead in the NY Times article:

The Washington Post, citing an informed U.S. official, reported that the NSA's warrantless monitoring of U.S. subjects began before Bush's order was issued in early 2002 and included electronic and physical surveillance carried out by other military intelligence agencies assigned to the task.

The Post also takes a shot at the Times, for the paper's willingness to accomodate the Bush administration by holding off publication of the story for a year:

The Times said it agreed to remove information that administration officials said could be "useful" to terrorists and delayed publication for a year "to conduct additional reporting."

The paper offered no explanation to its readers about what had changed in the past year to warrant publication. It also did not disclose that the information is included in a forthcoming book, "State of War: The Secret History of the CIA and the Bush Administration," written by James Risen, the lead reporter on yesterday's story. The book will be published in mid-January, according to its publisher, Simon & Schuster.

In response to the flack, President Bush acknowledged today in his weekly radio address that he did authorize the intelligence gathering, and defended his decisions to do so:

He defended his decision to sign the secret order, calling the program a "vital tool in our war against terrorists" and "critical to saving American lives."

"This is a highly classified program that is crucial to our national security," a stern-looking Bush said. "Its purpose is to detect and prevent terrorist attacks against the United States, our friends, and allies. . . .And the activities conducted under this
authorization have helped detect and prevent possible terrorist attacks in the United States and abroad."

"I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups," Bush added.

I don't have the same reaction towards this that I'm seeing on a lot of liberal blogs; by that I just mean I'm not apoplectic about it. But I am deeply, deeply troubled. There's a very good reason why any domestic intelligence gathering, whether for national security or law enforcement reasons, has required procedural approval in the courts. For one, the constitutional protections against search and seizure require such procedures. But beyond that, the history of domestic intelligence gathering by national agencies (FBI, CIA, etc.) is rife with abuse, including widespread spying on civil rights activists and Vietnam war protestors in the late 60's and early 70's; abuses which lead to the general prohibition against domestic spying. Bush says that safeguards against such abuse are in place, but in my opinion that's like asking the fox to watch the henhouse; you have the executive department overseeing the regulation of a program they themselves are personally interested in seeing exapnded as they deem necessary. I'm sure that for the most part, the people running the program have exercised caution and discretion...so far. But absent a wealth of good-hearted souls, that's just asking for someone to abuse the system at some point. Apparently there was some Congressional involvement, and at least one member of Congress-Senator Rockfeller-wrote Vice President Cheney about his concerns over the program (what the reply was, or if there was a reply at all, is unknown.) But is this oversight in the same vein as the Congressional insight on the WMD intelligence before the Iraq war? If so, then it's not any type of oversight that we can rely on.

All in all, I think this was yet another terrible call on Bush's part. For one, he cannot authorize the violation of the constitutional protections against unlawful search and seizure. Of course there are various nuances to the protection, but it's at best reckless to simply allow an agency to circumvent the rules that law enforcement agencies are required to follow. And secondly, by keeping this a secret, and authorizing it seemingly on executive whim, he's overplayed his hand. Had he made an open case for this sort of intelligence gathering, and provided an acceptable means to do it while ensuring adequate constitutional protections, he might've gotten most of what he wanted with public knowledge and approval. Instead the public-and most of Congress-are hearing for the first time about a program that's been in effect for three years now, whose "safeguards" are unknown, and the benefit of which is unknown. Who are they spying on? Why? Where is that information going? Into yet another "database"? What has this intelligence revealed? Who decides who does and doesn't get spied on? Will we ever know those things? The only question I can answer is the last one, and the answer to that one is no. One thing I do know for sure though is that this revelation promises to do more damage to the Bush administration's goals-and to Bush's "legacy"- and I think it's only a matter of time before the whole program is scrapped.