Statement on Bush's Unauthorized Domestic Spying

By Gary D. Bass, Executive Director, OMB Watch
December 20, 2005

The admission by President Bush that he personally authorized the surveillance of American citizens beyond judicial oversight raises two sets of critical questions, one dealing with whether he followed the letter of the law and the other with the quality of the judgment he exercised. Congress must now concern itself with both these areas.

First are the legal questions. Since October 2001, the president has authorized the National Security Agency to monitor phone calls and emails to and from certain countries. Since the secret surveillance came to light, the president and his lieutenants have argued that his authorization of domestic spying is allowable under Article II of the U.S. Constitution and the congressional joint resolution passed in September 2001, which gave the president the power to use "all necessary and appropriate force" against those responsible for the Sept. 11 terrorist attacks and "in order to prevent any future acts of international terrorism against the United States..." While the 2001 resolution was intended to authorize the invasion of Afghanistan and capture of Osama bin Laden, it has been interpreted by the White House to authorize a broad war on terrorism, spanning the globe and reaching into the lives of ordinary Americans.

The 1978 Federal Intelligence Surveillance Act already addresses presidential authority to conduct surveillance. The law, enacted in response to domestic spying during the 1960s and 70s, imposes limited judicial oversight on the "inherent authority" of the President to conduct surveillance in the interest of national security. Under FISA the president must seek approval for such information gathering from a highly secretive court. Although most Americans are unaware of its very existence, the court issues more surveillance and physical search orders than the entire federal judiciary combined, and it very rarely blocks a request. Since its inception, it has rejected only five of 18,748 requests for wiretaps or searches. FISA also allows the president to circumvent the secret court for emergency situations, allowing wiretaps approved by the attorney general for up to 72 hours and spying for up to 15 days after a declaration of war, before consulting the court.

Determining whether President Bush violated the law involves enormously complex legal questions that will be debated by experts on both sides of the issue, but it is now incumbent on Congress to act, in order to provide immediate oversight and to investigate whether the president has acted unlawfully.

The second set of unanswered questions revolves around whether the president has acted appropriately. Even if the letter of the law was followed, we believe that spying on Americans without any court order is an abuse of power. The United States was founded on the rule of law and is based on a system of checks and balances to protect against unrestrained power. In bypassing even the weak oversight of FISA courts, the president has shown he believes himself to be above these checks and balances in conducting the war on terrorism.

As the administration has been quick to point out, the war on terrorism is unlike other wars. There exists no specific enemy leader in the "war on terrorism" to surrender or negotiate a truce. Terrorism is a concept, or more specifically a tactic, and like wars on other concepts like "crime" or "drugs," the "war on terrorism" is an open-ended war. Nor is the "war on terrorism" bound, as traditional wars have been, by geography or objective; the assumption that war powers afforded leaders during traditional wars should therefore be applicable to the "war on terrorism" seems questionable at best.

Secrecy in and of itself is not a bad thing and certainly our government must have the power to act quickly to protect its citizens. When we allow government secrecy to flourish and combine it with unchecked power concentrated in the hands of a few, however, that power can be abused. The essence of our civil liberties is to allow law abiding citizens to live without fear of their own government--this is at the heart of our founders' intentions. We have seen the consequences of secrecy and unchecked power: distrust of government and fear. We saw it when FBI Director J. Edgar Hoover spied on Vietnam War protestors and when Sen. Joseph McCarthy championed domestic witch-hunts to root out communist sympathizers. It was wrong and dangerous then, and it is wrong and dangerous now.

The president told reporters that he briefed selected congressional leaders on the surveillance, implying such briefings created the necessary checks and balances. Telling secrets to selected members of Congress, far from creating oversight or accountability, however, only obliges them to keep those secrets and remain silent. Moreover, the president apparently sought neither the advice nor consent of those he briefed. As Sen. Jay Rockefeller, the Vice Chairman of the Select Committee on Intelligence, tersely noted of the objections he expressed to Vice President Cheney, "These concerns were never addressed, and I was prohibited from sharing my views with my colleagues."

The president now owes the American people answers to a number of questions. What is the extent of the surveillance? What criteria is the administration using to decide when to eavesdrop? Given how accommodating the FISA courts have been, why was the president unwilling to obtain court orders to carry out domestic spying? If the USA PATRIOT Act was passed after the 2001 resolution and after the president reportedly had begun the warrantless spying, why didn’t he request that authority when Congress was debating passage of the Patriot Act? Why did the president request Congress to extend the FISA wiretap window from 24 hours to 72 hours--an extension that Congress granted--only to disregard it?

The president has attempted to explain his actions away, saying he acted to protect the public. But valuing security over liberty is antithetical to the very democratic principles that this administration has made its charge to spread internationally. As Benjamin Franklin so eloquently said, "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety."

The revelation that our government has been spying on U.S. citizens should awaken citizens to the need for transparency and accountability to ensure elected officials act responsibly and lawfully. It should also rouse Congress to both investigate the legality of and challenge the rationale behind White House moves to bypass the system of checks and balances established by our nation's founders.

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