In 1978, Congress thought it had closed a loophole in the law when it passed the Foreign Intelligence Surveillance Act. The loophole concerned secret spying authorized by the president on grounds of national security.
On Friday, many in Washington were surprised to learn that despite the 1978 law, President Bush and his advisors had claimed the power to authorize secret spying within the United States.
The New York Times reported that Bush had authorized the National Security Agency to listen in on the phone calls of thousands of people in this country without getting permission from a court. Bush’s lawyers maintained that the president had the inherent authority as commander in chief to protect national security through secret spying. The account was confirmed by the Los Angeles Times.
“This sounds like an extraordinarily broad exemption to FISA,” said Washington lawyer Kenneth C. Bass III, who worked on the 1978 law as an aide to President Carter. “This is well beyond the pale of what was anticipated back then.”
Other lawyers who helped write the law thought it prohibited what Bush apparently authorized.
“FISA was the sole authority for wiretapping” on national security grounds, said Jerry Berman, who worked on the 1978 law as a counsel to the American Civil Liberties Union. “The statute would be a futile exercise if the president retained the authority to conduct these wiretaps on his own.”
As a general matter, the Constitution forbids the government from spying on Americans – including by listening in on their phone calls – without a court’s permission. The 4th Amendment says police or federal agents must show a magistrate some evidence of wrongdoing before they can obtain a warrant that authorizes them to listen in on phone calls.
However, through most of the 20th century, presidents maintained they had the power to protect the nation’s security by, for example, spying on foreign agents who were operating in the United States. No one questioned that US intelligence agencies could tap the phones of Soviet agents.
In the mid-1970s, Congress learned the White House had abused this power: Presidents, both Democratic and Republican, had authorized the FBI to tap the phones of hundreds of political activists and celebrities, including Martin Luther King Jr. and Vietnam War protesters.
Those revelations led to the 1978 law. One provision says it is a crime for anyone to “intentionally engage in electronic surveillance” except as authorized by law or a court order. However, “the president, through the attorney general, may authorize electronic surveillance … to acquire foreign intelligence information” if officials obtain a warrant from a special court that operates inside the Justice Department.
The judges of what is known as the FISA court may issue warrants for wiretaps when the government has evidence that a person is working for a “foreign power” or is involved in terrorism. This is not a high standard, legal experts say. The judges issue warrants virtually whenever the government applies for one, the Justice Department has said in the past.
However, the law requires evidence that the wiretap target has links to a foreign government or a terrorist group. It would not permit, for example, the wiretaps of hundreds of Muslim men in the United States simply because they telephoned the Middle East.
Top intelligence officials have in the past assured Congress that they follow the law and do not engage in secret spying. “There is a rigorous regime of checks and balances which we – the CIA, the NSA and the FBI – scrupulously adhere to whenever conversations of US persons are involved. We do not collect [information] against US persons unless they are agents of a foreign power,” then-CIA Director George J. Tenet told a House committee five years ago.
After Sept. 11, Bush said he would use all the powers of the presidency to prevent another terrorist attack in the United States. His advisors feared then that secret Al Qaeda cells existed within the country and that further attacks were planned.
Administration officials refused Friday to discuss the National Security Agency spying program or even to confirm its existence.
Some former officials say it is important to put the program into the context of the time.
“I wasn’t aware of this when I was at the White House, but there was a tremendous sense of urgency to take whatever steps were necessary to detect and disrupt any cells that were out there,” said Bradford A. Berenson, a White House lawyer during Bush’s first term. “The president was not going to let it be said that he had not used all the powers at his disposal to protect the American people.”
This would not be the first time Bush has claimed that his power as commander in chief can override the law.
The Constitution forbids the government from arresting and holding people in the United States without “due process of law.” Nonetheless, Bush has claimed the power as commander in chief to designate people as “enemy combatants” and imprison them indefinitely without filing charges.
In 2002, US citizen Jose Padilla was arrested at Chicago’s O’Hare International Airport and held in military brigs for nearly three years. Civil libertarians said that was unconstitutional. His case had been heading toward the Supreme Court; the administration recently brought criminal charges against him, thereby thwarting a clear ruling on the issue.
In the past, Congress has ratified treaties pledging that the United States and its agents will not use torture or inhumane treatment against captives. Once ratified, treaties become part of American law, according to the Constitution.
But before this week, the White House maintained that the laws and treaties did not bind the president in handling terrorist leaders. White House lawyers wrote memos that appeared to justify the use of extreme measures – which critics called torture – in interrogating suspected terrorists.
Civil libertarians say the latest revelations add to their frustration with the Bush administration. “If we are a nation of laws, then the president must be bound by the rule of law,” said Lisa Graves, senior counsel at the ACLU in Washington. “This is clearly in violation of FISA and a violation of the Constitution. The president, no matter who he is, does not have the power to decide which laws he will follow.