How does one sit down to write about the deliberate circumvention of law in a nation of laws by the Chief Executive? Especially, when the actions taken by that executive ignore the lessons that were hard learned and codified into law for the express purpose of preventing the very actions taken?
The Foreign Intelligence Surveillance Act of 1978 (or FISA) provides the framework for how surveillance by covert agencies may or may not be done. The Bush Administration has put forth the argument that FISA had to be circumvented due to immediate need for surveillance of subjects in the aftermath of 9/11 due to urgent national security concerns. But this is a lie.
FISA provisions already provide for emergency surveillance measures. Under 36 USC 1805, the Attorney General may authorize emergency surveillance (including wiretapping and other regulated surveillance methods) for up to 72 hours, so long as application for approval by the FISA supervisory court is made before that time expires. The Administration already had all the emergency measures it needed to do surveillance without illegal encroachment on American civil liberties.
Further, this was a calculated effort to circumvent the law, resting these efforts on a matter of urgent national security -- which was designed to ensure that any opposition would have to occur privately in the interests of the nation. The "Gang of Eight" would have to have been informed of this Presidential directive -- this is the leadership of the House and Senate, and the leadership of the Intelligence committees in both houses -- at the time that the initial directive was put into place.
On John Yoo's recommendation (according to reports here and here), the President issued the first order within a very short framework after 9/11. The Gang of Eight does not have to give unanimous agreement by any means for a Presidential Directive to become effective, there is simply a notification requirement of actions of this nature prior to the order going into effect.
Because there was an ongoing threat of potential sleeper cell activity in this country at the time, any opposition would have to have been maintained behind intelligence walls, simply on the basis of urgent national security interests. The Administration knew that would be the consideration weighed in by all of those members notified, because first and foremost the immediate safety concerns would have been paramount at that time. And they used this to their advantage in this power grab that violates the principles of separation of powers and the prohibition against violation of Fourth Amendment rights.
The Fourth Amendment to the United States Constitution reads as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.The wholesale, willful and deliberate circumvention of this Constitutional principle by the Bush Administration is appalling, not least because it was wholly unnecessary, given the emergency provisions already in place in the FISA laws. (This FindLaw link provides a wealth of information on Fourth Amendment considerations and case law. Very useful.)
The question comes as to what oversight, if any, has been given to this matter after the immediate threat of 9/11 subsided. Why was this circumvention of the FISA law allowed to continue? The recent articles on the subject indicate that there was oppostion by Democrats, particularly by Sen. Rockefeller, but with an Administration and a Congress controlled by Republicans who have made it a policy to shut out the minority and any opposing opinions, how much if any of this got through?
Since the implementation of FISA, the FBI has primarily been responsible for domestic surveillance. The NSA, rather gratefully, retreated to foreign surveillance after the turmoil of the Vietnam era. (And it isn't just the NSA involved, it's also the DoD.)
The Bush Administration has thoughtlessly and needlessly breached that wall and, despite all indications being that the NSA program was very limited in terms of personnel being involved, has tainted the entire operation -- again -- and shined a light on an agency that thrives in the shadows. Which does not help us in terms of national security considerations. (NPR has had a series of reports on this matter, including an particularly exceptional interview with James Bamford which can be found here. Well worth the listen.)
But this is an Administration that appears to think only in short term needs and wants, and not in long term consequences and worst case scenarios. The President acknowledged today that he did, indeed, authorize this domestic surveillance. Reports are that he did so on multiple occasions.
Congressional leaders of both parties have called for hearings on the subject.
They would do well to remember that, in a nation of laws, neither the President nor members of Congress are above the rule of law. And that the nation is watching to see if anyone will be held to account for the machinations and lies of King George. If the Congress does not hold this Administration to account, then the public will do so in the 2006 elections. Period.
Digby, Atrios and Josh Marshall have more.