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 http://www.fas.org/irp/agency/doj/fisa/, 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 requests.
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 Rehnquist.
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 presidency.
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….” 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.