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What Is the Bush Administration Trying to Hide?

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  • Robert Sterling
    Please send as far and wide as possible. Thanks, Robert Sterling Editor, The Konformist http://www.konformist.com January 5, 2006 What Is the Bush
    Message 1 of 1 , Jan 14, 2006
      Please send as far and wide as possible.

      Robert Sterling
      Editor, The Konformist

      January 5, 2006
      What Is the Bush Administration Trying to Hide?
      by David Wallechinsky

      President George W. Bush began the new year by telling the American
      people that his NSA domestic surveillance program was only used to
      monitor communications between members of al-Qaeda and people in the
      United States. He did not address the issue of why he deemed it
      necessary to bypass the Foreign Intelligence Surveillance Court
      (FISC) that had, for 24 years, been reviewing and approving such
      surveillance programs. When the story first broke, President Bush
      and his staff claimed to have done so because it took too long to
      obtain a warrant. This lame excuse fell apart within hours when it
      was revealed that the law already gave them the right to engage in
      surveillance for 72 hours without a warrant. So the question
      remains: What is the real reason George Bush and his team chose to
      bypass the FISC?

      We know that between 1978 and 1992, presidents Carter, Reagan and
      Bush presented 7,030 applications for warrants and the court
      approved all of them as submitted. During his eight years in
      office, President Bill Clinton and his Justice Department presented
      6,057 warrant applications. The FISC approved 6,055 of them,
      modified one and rejected one. This is not to say that there was no
      controversy involving the program.

      According to the Federation of American Scientists' archive of
      documents relating to the Foreign Intelligence Surveillance Act of
      1978, problems developed in 2000. In one case, the FBI assured the
      court that they had developed software that allowed them to pick up
      a surveillance target's emails without accessing anyone else's
      emails. But when the software was activated, it did access the
      email accounts of people not covered by the warrant. In another
      case, the FISC had approved surveillance of a target's phone calls
      and email. When it came time to renew the warrant, the FBI asked to
      continue wiretapping the target, but said they no longer needed to
      check his email. So the FISC approved a new version of the warrant
      that excluded email coverage.

      Nevertheless, the FBI continued to cover the target's email anyway.
      Other cases included FBI videotaping of a meeting even though
      videotaping had not been authorized, unauthorized searches and
      continuing surveillance after warrants ran out. In one case, the
      FBI failed to notice that a target had given up his cell phone and
      that the cell phone number had been reassigned to a new person. The
      FBI continued this electronic surveillance "for a substantial period
      of time" even though the new owner of the cell phone number spoke a
      different language than the target. Despite these problems, the
      relationship between the executive branch and the FISC appears to
      have remained harmonious, as indicated by the fact that the court
      approved without modification 99.97% of the Clinton Administration

      All this changed after George W. Bush became president. The court
      rejected six requests outright and modified 179. Some Bush
      supporters have tried to characterize the FISC justices as liberal
      obstructionists. In fact, all eleven members of the Bush-era FISC
      were selected by conservative Supreme Court Chief Justice William

      The Foreign Intelligence Surveillance Act of 1978 (FISA) that
      created the FISC also provided for a three-member Foreign
      Intelligence Surveillance Court of Review to review applications
      denied by the FISC. All three current members of this court were
      appointed by Chief Justice Rehnquist during George W. Bush's

      After 24 years of idleness, in September 2002 the Court of Review
      heard its first case because the Bush Administration tried to expand
      the coverage of FISA jurisdiction to allow prosecutors and local law
      enforcement agencies to be involved in the surveillance program and
      to have access to information obtained through the surveillance.
      FISC modified their requests before accepting them and the Bush
      Administration appealed.

      At the September 9, 2002, hearing before the Court of Review, the
      Bush Administration was represented by ten members of the Department
      of Justice, led by Solicitor General Theodore B. Olson, who had
      become famous when he presented the Bush-Cheney case to the Supreme
      Court during the 2000 presidential election dispute. Other notables
      included James A. Baker, in his role as counsel for the Office of
      Intelligence Policy and Review, and John C. Yoo, the administration
      go-to guy to legally justify anything the Bush Administration wants
      to do. The Justice Department team was joined by Spike Bowman, a
      lawyer for the FBI, and David S. Addington, a lawyer representing
      Vice-President Cheney's office. Lawyers supporting the FISC
      decision were not allowed to be present, so the ACLU and others
      later submitted a written brief to the three justices. The
      convening of the Court of Review was so novel that the justices had
      to ask the Justice Department lawyers who submitted the surveillance
      applications (the Attorney General's staff) and how often the FISC
      met to consider the applications (once a week).

      Olson argued that a FISC-approved surveillance could uncover
      information about a suspect that, although totally unrelated to
      terrorism, might indicate illegal or illicit activities that could
      then be used to blackmail or intimidate a terrorism-related suspect
      into cooperating with the authorities. Such a prosecution or threat
      of prosecution would be approved by the Attorney General who, at the
      time, was John Ashcroft. It is worth noting that FISA warrants are
      issued based on a lower than usual standard that does not require
      probable cause, and that if a FISA-approved surveillance leads to a
      prosecution, the targets may not be allowed to obtain copies of
      their intercepted communications.

      The Administration also wanted to change the phrase "the purpose of
      the surveillance is to obtain foreign intelligence information"
      to "a significant purpose of the surveillance¬Ö." This qualifying
      word could open the door to all manner of other "purposes" for
      surveillance. When the Court of Review judges tried to get the
      Justice Department officials to clarify what other purposes there
      might be besides suspicion of terrorism or espionage, Olson and
      Baker were evasive. Exasperated, Judge Lawrence Silberman
      said, "I'll try one more time and then I'll give up." Olson
      complained that the judges were asking "very, very difficult
      questions" and, in the end, Silberman never got his answer.

      At one point in the proceedings, Judge Ralph B. Guy, Jr. found "a
      touch of irony" in the fact that after the Patriot Act had expanded
      the government's power of surveillance and after the FISC had gone
      24 years without an appeal, suddenly, for the first time, the
      government was complaining about being restrained by the court.
      Nonetheless, on November 18, 2002, the Court of Review sided with
      the Bush Administration.

      Yet despite this victory, and despite having the expanded powers of
      the Patriot Act, President Bush and Vice-President Cheney were not
      satisfied with the extent of their power and they began clashing
      with the FISC. In 2003 and 2004, the court denied four of the Bush
      Administration's applications, forced them to withdraw three and
      modified 173. In the 24 years prior to 2003, the court had voiced
      objections to a grand total of six applications.

      Of course it would be illuminating to know the exact nature of the
      surveillance requests that led the FISC to issue this myriad of
      rejections and modifications and whether George Bush went ahead with
      these surveillances anyway. It would also be interesting to know if
      the Bush team, once it declared itself free of any judicial or
      Congressional oversight whatsoever, decided to take advantage of the
      NSA surveillance network to go beyond fighting terrorism to spy on
      people and organizations for other reasons. For example, did they
      use government resources to spy on members of Congress, journalists,
      the Kerry campaign, opponents of the Bush agenda, foreign
      corporations or members of the United Nations? It would also be
      useful to know why Bush and Cheney transferred the responsibility
      for these surveillances from the FBI to the NSA, an agency which, in
      its 50 years of existence, had not previously been involved in
      domestic surveillance.

      Whatever the answers to these questions, possible grounds for
      impeachment will probably center instead on whether Bush and Cheney
      are lying about what they have done and whether they usurped powers
      that the Constitution grants to the legislative and judicial
      branches of the United States government. President Bush claims
      that after 9/11 Congress gave him the power to do whatever he wants
      in fighting terrorism, including detaining suspects indefinitely
      without charge and without access to legal counsel and including
      engaging in surveillance of Americans without warrants. This must
      surely come as a surprise to most members of Congress, who were
      unaware that they had done this. Bush claims that as commander-in-
      chief of the armed forces, he is free to use whatever tactics he
      wants. This is a creative interpretation of Article II of the
      Constitution if ever there was one. As far as the FISC rules go, if
      President Bush has decided that he is not obligated to apply for
      warrants through the court, one wonders why he bothered to do so
      5,645 times during the first term of his presidency.

      In the coming months it will be fascinating to watch as each
      Republican member of Congress (and Joe Lieberman) decides whether he
      or she owes a greater loyalty to President Bush or to the
      Constitution. It is possible that the members of the Supreme Court,
      some of whom pride themselves on being strict constructionists, will
      face the same dilemma.
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