George W. Bush's Domestic Spying: Legal or Illegal?

Is George W. Bush's Domestic Spying Legal or Illegal?


 * "What's wrong with it is several-fold. One, it's bad policy for our government to be spying on American citizens through the National Security Agency. Secondly, it's bad to be spying on Americans without court oversight. And thirdly, it's bad to be spying on Americans apparently in violation of federal laws against doing it without court order." --Former Congressman and CNN Contributor Bob Barr on CNN's Situation Room, December 16, 2005.

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 * A January 6, 2006, Congressional Research Service report concluded that the administration's justification for the warrantless eavesdropping authorized by President [George W.] Bush conflicts with existing law and hinges on weak legal arguments," rebutting "the central assertions made recently by Bush and Attorney General Alberto R. Gonzales about the president's authority to order secret intercepts of telephone and e-mail exchanges between people inside the United States and their contacts abroad." --Carol D. Leonnig Washington Post, January 7, 2006.

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 * On January 19, 2006, the Department of Justice issued a detailed "white paper" which said that "the president has the legal authority to approve the [warrantless wiretapping] program because of the power given to him in the Constitution to protect the country as well as in the post-9/11 authorization to use military force passed by Congress." Anthony Romero, ACLU Executive Director, "criticized the release of the new legal review," saying "'The fox may now be guarding the henhouse, which is why we need an independent special counsel.'" --CNN.

Legality?
"The current dispute over whether the president had the authority to order domestic spying without warrants, despite a law against it, has put new focus on the legal officials who have guided Bush," Peter S. Canellos wrote in the December 27, 2005, Boston Globe. The qualifications of former Attorney General John Ashcroft and White House counsels Alberto R. Gonzales and Harriet E. Miers "could become a focus of the upcoming Senate hearings on the spying decision."

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) "reiterated his reservations" on Sunday, January 15, 2006, "about President Bush's legal authority to order domestic spying, saying that Congress had not given Bush a 'blank check' to order warrantless eavesdropping. ... Specter also said that if planned congressional hearings determined that the president broke the law, one possible remedy could be impeachment, though he quickly added that such talk was theoretical — and premature," CNN's Ed Henry wrote January 16, 2006.

Related Links
 * Jordan Paust, "Not Authorized By Law: Domestic Spying and Congressional Consent," The Jurist Forum, December 24, 2005.
 * Carol D. Leonnig, "Gonzales Is Challenged on Wiretaps. Feingold Says Attorney General Misled Senators in Hearings," Washington Post, January 31, 2006.
 * Glenn Greenwald, "The Administration’s pattern of deceit re: eavesdropping," Unclaimed Territory, January 31, 2006.
 * Margaret Ebrahim, "Update 10: Papers: Ford White House Weighed Wiretaps," Associated Press (Forbes), February 4, 2006: "Some experts weren't surprised the cast of characters in this national debate remained largely unchanged over 30 years."
 * John Aravosis, "Gonzales will say that media reports about Bush's spy program are all wrong. Then why did Cheney just say the media reports caused 'enormous damage'?" AMERICAblog, February 5, 2006.
 * "Specter Blasts Spy Program Rationale," Associated Press/CBS News, February 5, 2006.
 * "Specter: The authorization for the use of force doesn't say anything about electronic surveillance," Crooks and Liars, February 5, 2006. Specter on Meet the Press (WMP and QT links on page).
 * Also see Think Progress: "Specter: Adminstration’s Legal Arguments Are 'Strained and Unrealistic'," February 5, 2006; "Hagel: Bush 'Can’t Unilaterally Decide That A 1978 Law Is Out of Date And…Violate The Law'," January 29, 2006; and "FACT: Members of Both Parties Believe Bush Broke the Law," January 23, 2006.


 * Brian Knowlton, "Specter Says Surveillance Program Violated the Law," New York Times, February 5, 2006.
 * David Johnston and Michael Janofsky, "Defending a Program and His Reputation," New York Times, February 5, 2006.
 * Barton Gellman, Dafna Linzer and Carol D. Leonnig, "Surveillance Net Yields Few Suspects. NSA's Hunt for Terrorists Scrutinizes Thousands of Americans, but Most Are Later Cleared," Washington Post, February 5, 2006.
 * Hope Yen, "Specter Criticizes Rationale for Spying," Associated Press (Philadelphia Journal Register), February 6, 2006: "Sen. Arlen Specter said Sunday he believes that President Bush violated a 1978 law specifically calling for a secret court to consider and approve such monitoring. The Pennsylvania Republican branded Gonzales' explanations to date as 'strained and unrealistic.'"
 * Scott Shane, "For Some, Spying Controversy Recalls a Past Drama," New York Times, February 6, 2006.
 * Declan McCullagh and Anne Broache, "Some companies helped the NSA, but which?" C|Net News, February 6, 2006.
 * Anne Broache, "Gonzales: NSA may tap 'ordinary' Americans' e-mail," C|Net News, February 6, 2006.
 * Eric Lichtblau and Sheryl Gay Stolberg, "Accord in House to Hold Inquiry on Surveillance," New York Times, February 17, 2006.
 * Shane Harris and Murray Waas, "Justice Department Probe Foiled" National Journal, May 25, 2006
 * Murray Waas, "What Did Bush Tell Gonzales?" The Atlantic, Sept. 26, 2008.
 * Glenn Greenwald, "Salon Radio: Murray Waas on the NSA program," Salon.com, Sept. 26, 2008.

Congress's NSA Hearing
"In the first congressional hearing [conducted February 6, 2005,] to examine the eavesdropping-without-warrant program secretly approved by President Bush after" the September 11, 2001, attacks, "senators jousted with Gonzales over the administration's legal rationale." 


 * Glenn Greenwald, "Preview of Sen. Kennedy's questioning tomorrow," Unclaimed Territory, February 6, 2006.
 * Emily Bazelon, "Cowardly Lions. Congress talks tough to Gonzales—and then turns and runs," Slate, February 6, 2006.
 * Michelle Mittelstadt, "Senators skeptical of administration's rationale for spying program," Dallas Morning News (The Mercury News), February 6, 2006.
 * Katherine Spader, "Gonzales to Answer Eavesdropping Questions," Associated Press (Philadelphia Journal Register), February 6, 2006.
 * Kevin Drum, "NSA Hearings Day 1," The Washington Monthly, February 6, 2006: "I'm also more tired than you can imagine of his constant invocation of presidents from Washington to Roosevelt who authorized warrantless surveillance in wartime. All of that happened before FISA was passed in 1978 and is completely meaningless. And he knows it." To which Josh Marshall of Talking Points Memo responded: "It's typical of the administration's basic way of operating with the public -- conscious misdirection and flimflam. You can't make this argument unless your intent is to confuse the issue and avoid the issue of whether the president has to follow the law." Also see John Aravosis' "President Washington's electronic eavesdropping program," AMERICAblog, February 7, 2006.
 * jesselee, "Damage," The Stakeholder, February 6, 2006: "Gonzales acknowledged that Al Qaeda was probably already aware that we were trying to conduct surveillance on them, but that as long as it wasn't in the newspapers, sometimes they forget."
 * "Rove counting heads on the Senate Judiciary Committee," Insight on the News (Washington Times), February 6-12, 2006: "Congressional sources said Deputy Chief of Staff Karl Rove has threatened to blacklist any Republican who votes against the president. The sources said the blacklist would mean a halt in any White House political or financial support of senators running for re-election in November."
 * Charles Babington, "Activists on Right, GOP Lawmakers Divided on Spying. Privacy Concerns, Terror Fight at Odds," Washington Post, February 7, 2006.
 * Declan McCullagh and Anne Broache, "NSA has a few options in tapping program," C|Net News, February 7, 2006: "Even a panel of determined senators couldn't convince Attorney General Alberto Gonzales to divulge much about how the massive surveillance program conducted by the National Security Agency actually works."
 * Edward Epstein, "Gonzales, senators face off over spying. Feinstein challenges attorney general on civil liberties," San Francisco Chronicle, February 7, 2006.
 * Howard Kurtz, "Eavesdropping on Congress," Washington Post, February 7, 2006.
 * "From the Hearing," Excerpts posted by the Washington Post, February 7, 2006.
 * Charlie Savage, "GOP senators add heat on spying. Specter urges AG to get court review," Boston Globe, February 7, 2006.
 * Charles Hurt, "'Enemy is listening,' Gonzales warns," Washington Times, February 7, 2006.
 * Sheryl Gay Stolberg, "Balancing Act by Democrats at Hearing ," New York Times, February 7, 2006.
 * Editorial: "Too few answers on domestic spying. Attorney General's Defenses Ring Hollow," The Mercury News, February 7, 2006.
 * Richard B. Schmitt, "Gonzales Also Ends Up Defending His Credibility. Senate Democrats accuse the attorney general of previously misleading them on the domestic surveillance program," Los Angeles Times, February 7, 2006.
 * Maura Reynolds, "Gonzales Defends Spying as 'Limited and Lawful'," Los Angeles Times, February 7, 2006.
 * Brian Bennett and Massimo Calabresi, "In Defense Of Eavesdropping. Gonzales stands his ground as Congress assails wiretapping program," TIME, February 7, 2006.
 * Nicholas Johnston and Kristin Jensen,"Senators Reject Gonzales's Answers On U.S. Surveillance Program," Bloomberg News, February 7, 2006.
 * Editorial: "Gonzales defends the indefensible," Boston Herald, February 7, 2006.
 * Patrick Radden Keefe, "Trust the Professionals? The Bush administration's credibility problem on eavesdropping," Slate, February 7, 2006.
 * Gail Russell Chaddock, "Senate toughens scrutiny of wiretapping. Senators from both parties are asking hard questions about the president's wartime powers," Christian Science Monitor, February 7, 2006.

Circumventing the Courts

 * "The End-Run Around the Courts: A Justice at Stake Backgrounder on Recent Assaults on Checks and Balances," US Newswire, December 22, 2005. See court-stripping.
 * Diane Bartz, "Bush may allow wiretapping review: Specter," Washington Post, June 25, 2006. re Arlen Specter

Scope of Eavesdropping

 * Charlie Savage, "Wiretaps said to sift all overseas contacts. Vast US effort seen on eavesdropping," Boston Globe, December 23, 2005.
 * Eric Lichtblau and James Risen, "Spy Agency Mined Vast Data Trove, Officials Report," New York Times, December 24, 2005.
 * "NYT: NSA eavesdropping wider than W.House admitted," Reuters, December 24, 2005.
 * "NY Times: Domestic spying widespread," Associated Press (CNN), December 24, 2005: "The NSA, with help from American telecommunications companies, obtained access to streams of domestic and international communications, said the Times, citing unidentified current and former government officials. ... The story did not name the companies."
 * "Wiretaps fail to make dent in terror war; al Qaeda used messengers," Insight Magazine in Washington Times, December 26, 2005-January 1, 2006 (posted December 27, 2005).
 * John Aravosis of AMERICAblog summed it up January 9, 2006: "1) Bush is spying on American-American phone calls IN THE US; 2) Known Al Qaeda agents are running free inside US; 3) Spy program useless."


 * Doug Thompson, "NSA just one of many federal agencies spying on Americans," Capital Hill Blue, December 27, 2005.
 * Dana Priest, "Covert CIA Program Withstands New Furor. Anti-Terror Effort Continues to Grow," Washington Post, December 30, 2005: "The broad-based effort, known within the agency by the initials GST, is compartmentalized into dozens of highly classified individual programs, details of which are known mainly to those directly involved. ... GST includes programs allowing the CIA to capture al Qaeda suspects with help from foreign intelligence services, to maintain secret prisons abroad, to use interrogation techniques that some lawyers say violate international treaties, and to maintain a fleet of aircraft to move detainees around the globe. Other compartments within GST give the CIA enhanced ability to mine international financial records and eavesdrop on suspects anywhere in the world."
 * Shane Harris and Tim Naftali, "Tinker, Tailor, Miner, Spy. Why the NSA's snooping is unprecedented in scale and scope," Slate, January 3, 2006.
 * eriposte, "King-George-gate: Myths v. Realities," The Left Coaster, January 5, 2006.
 * The White House wants Google and other internet search engines to reveal who is searching for what, NPR, et al., January 20/21, 2006.  Unfortunately it appears that other major search engines, including Yahoo and AOL have complied.
 * "Whistleblower says NSA violations bigger," UPI, February 14, 2006.

Related SourceWatch Resources

 * Congressional action on domestic spying
 * Related Links & Commentary 2001-2005
 * Related Links & Commentary 2006
 * George W. Bush's domestic spying: SourceWatch Resources
 * National Security Surveillance Act of 2006