Bush authorized warrantless NSA wiretapping in October 2001. However, Joseph Nacchio former CEO of Qwest convicted April 19, 2007 of insider trading reported that the NSA in a meeting on February 27, 2001 (1 month after Bush became President and 6 1/2 months before 9/11) tried to sign Qwest up to a warrantless surveillance program and that when Nacchio refused the NSA pulled hundreds of millions of dollars worth of contracts from the company.
Under the 1978 Foreign Intelligence Surveillance Act (FISA) a warrant would be needed from the FISA court (federal judges entrusted with these decisions in addition to their regular jobs) for domestic to international telephone or internet communication. The bar for such a warrant is extraordinarily low, has almost never been denied, and can be granted up to 3 days after the surveillance as begun (in order to give maximum flexibility in emergency situations). This is in contrast to international to international communications which have always been considered legitimate targets for US intelligence organizations and require no warrant.
The post-9/11 Bush program acquired its legal basis from a John Yoo memo originating in the DOJ’s Office of Legal Counsel (OLC). It went much further than cutting FISA out of the loop and probably included surveillance of both international and domestic communications of targets generated from datamining NSA databases as well as their contacts and the contacts of those contacts in ever expanding and less relevant circles. While incredibly intrusive and in violation of Fourth Amendment protections, this operation was to all intents and purposes worthless. FBI agents sent to check out the information they received from this program were invariably sent on wild goose chases. They wasted a lot of time and resources on them, all of which could have been better spent elsewhere. Because this was often where their information led them, they took to calling these Pizza Hut leads. It has been suggested that what the NSA was using in its surveillance was a program called Main Core, a searchable database of databases. It is rumored to contain data on 8 million Americans deemed suspicious (yes, I don’t know what that means either) who in case of national emergency would be subject to anything from arrest to heightened surveillance. It may have been this massive warrantless surveillance, real or potential, of huge numbers of Americans that troubled some, like James Comey and Jack Goldsmith, at the DOJ. It screamed lack of probable cause and smacked too closely of being an enemies list, only a lot bigger.
In addition to this, the Administration appeared intent on exploiting the 1994 Communications Assistance for Law Enforcement Act (CALEA) to expand the scope of its surveillance. This act requires telecoms to configure their equipment to facilitate governmental wiretapping. While the act was not envisioned as a means of large scale warrantless wiretapping, it could with the help of service providers like the telecoms be turned into one. Supporting this view is that on March 10, 2004, the DOJ, FBI, and DEA (Drug Enforcement Administration) petitioned the FCC to extend CALEA to the internet (see item 252). This action coming as it did on the same day as the Ashcroft hospital visit (described below) may have been an effort to expand or acquire additional cover for a data mining program like Main Core that was already in operation.
In any case in March 2004, the OLC under its new head Jack Goldsmith a defense oriented conservative rejected Yoo’s reasoning and reversed its position on the NSA warrantless wiretapping program. Attorney General John Ashcroft and Deputy Attorney General James Comey both conservatives and Bush appointees accepted this finding. Then Ashcroft came down with acute gallstone pancreatitis and transferred his powers to his deputy Comey who became Acting Attorney General. In a scheme apparently orchestrated by Vice President Cheney, Bush called Mrs. Ashcroft and Cheney "on the President’s behalf" ordered then White House Counsel Alberto Gonzales and Chief of Staff Andrew Card to go to the hospital and get the ailing and doped up Ashcroft to sign off on the surveillance program. Mrs. Ashcroft informed her husband’s Chief of Staff David Ayers about the impending visit and he contacted Comey. Comey in turn contacted FBI Director Robert Mueller to order the FBI agents guarding Ashcroft to remain in his room (as witnesses) and raced to the hospital and Ashcroft’s room in the ICU. This set the scene for the now famous March 10, 2004 hospital room confrontation where Gonzales and Card ignoring Comey tried to get Ashcroft’s signature. Ashcroft was, however, lucid enough to refuse to sign and to point out the obvious: that he did not have the power to do so since Comey was the Acting Attorney General. Despite the refusal by the DOJ to vouch for the program’s legality, Bush re-authorized it anyway. A threat by Ashcroft, Comey, and Mueller to resign did, however, result in changes to the program. The OLC came up with a narrower justification under the AUMF for a more limited program which became the TSP (Terrorist Surveillance Program). It should be noted that this program in all of its manifestations and despite its various justifications has been illegal on its face since its inception.
The program became public when the New York Times reported on it in December 2005. In 2006 various unsuccessful attempts were made to accommodate the program. This included the infamous attempted "compromise" by Arlen Specter to legalize its worst excesses and retroactively amnesty any illegalities. Under mounting pressure and with a new Democratic Congress, Alberto Gonzales announced on January 18, 2007, a "deal" with the FISA court which would put the program under its supervision. Gonzales maintained, however, that Bush still had Article II power to go outside the court if he wanted to.
On July 24, 2007, Gonzales testified under oath before Senate Judiciary Committee that before going to the hospital to see Ashcroft he had met with a bipartisan group of Congressional leaders overseeing intelligence matters (the Gang of 8) to discuss Comey’s objections and that they had approved the predecessor to the TSP. Several of the Democratic members of the Gang of 8 denied that such approval was ever given. Additionally, Gonzales asserted that the program discussed was not the TSP but another program. Both General Hayden then head of the NSA and John Negroponte then DNI have indicated that this was precisely the program discussed albeit in its unmodified form. Finally, Gonzales maintained in his testimony that there had been no serious disagreement about the program despite the objections from the DOJ. Along with his constantly changing testimony concerning the US Attorney firings, this discrepancy led four Democratic members of the Senate Judiciary Committee on July 26, 2007 to ask Solicitor General Paul Clement (in his role of Acting Attorney General for matters in which Gonzales has recused himself) to name a special prosecutor to determine whether Gonzales has obstructed justice, perjured himself, and made false statements.
Despite previous abuses, April 10, 2007 intelligence czar DNI John "Mike" McConnell (not to be confused with Senate Minority leader Mitch McConnell) proposes allowing NSA to conduct domestic surveillance of foreign nationals completely outside of FISA, extend from 3 days to one week surveillance without seeking FISA permission "in emergency situations," immunize telecoms, and extend FISA warrants from 120 days to one year. McConnell has a large conflict of interest in the immunization of telecoms issue. Like too many others, McConnell has benefited from the revolving door between government and private enterprise. He has been director of defense programs at Booz Allen Hamilton a large defense and intelligence firm with CIA and NSA consulting contracts and chairman of the Intelligence and National Security Alliance, the primary business association for NSA and CIA contractors. In short, he has intimate connections to precisely those corporate players most closely involved in promoting the use of telecoms in intelligence gathering and with the greatest vested interest in keeping this arrangement going .
On August 5, 2007, Bush signed into law a 6 month revision of FISA which would allow warrantless wiretapping of non-American individuals "reasonably" thought to be outside the US and incidentally of US citizens as long as these are not the primary targets of surveillance. The Attorney General (at the time of the bill’s signing this was still the eminently untrustworthy Alberto Gonzales) and the DNI (the as we will soon see truth challenged Mike McConnell) alone and without any outside judicial review would see the program was properly carried out. In effect, this was a backdoor way to surveil Americans without a warrant. It also granted telecommunication companies prospective immunity for aiding the government in these activities during this 6 month period but not retroactively for their past actions.
The need for such a bill was raised at the last minute as lawmakers were on their way out of town for the August recess. Although it only became public later, the ostensible reason for modifying FISA at this particular juncture was an unspecified terrorist threat to the Capitol (which DNI McConnell knew at the time was based on an unreliable source). Mike McConnell then negotiated with Democratic Congressional leaders on a Democratic bill to address perceived shortcomings in the FISA law. The White House, however, wanted FISA gutted, and McConnell reneged on his deal with the Democrats. With the Congressional vacation coming on and members eager to leave, Democratic Speaker of the House Nancy Pelosi and Senate Majority Leader Harry Reid caved. Through their parliamentary machinations, the Democratic bill was defeated and the Republican version endorsed by the White House passed. The end result was, abetted by a dishonest DNI, another power grab by the Bush Administration and the failure of the Democrats to stand up to it.
On September 10, 2007, DNI McConnell testified before a Senate committee that the newly gutted FISA law the Protect America Act resulted in the arrest of 3 Germans planning to attack Americans in Germany. When German authorities pointed out that the Germans in question had come to their attention through US surveillance initiated under the old FISA statute, McConnell retracted his statement without apologizing for it.
On September 20, 2007, McConnell testified falsely again that surveillance of Iraqi insurgents holding American troops had been held up for 12 hours due to FISA court restrictions. The delay, however, occurred because of the initial weakness of the request submitted by the NSA to the DOJ (which given the low threshold for FISA warrants is telling) and subsequent foul ups in finding a senior official to sign off on it. Since the old FISA law allowed surveillance to begin up to 72 hours before the granting of a warrant, it is unclear why this was even an issue.
Because the Protect America Act (PAA) was set to expire after 180 days, in December 2007, an attempt was made in the Senate to pass a permanent extension. There were two principal versions of this bill, the Intel version from the Senate Select Committee on Intelligence (SSCI) chaired by the conservative Democrat Jay Rockefeller (D-WV) and another a revision of the Intel version that came out of the Senate Judiciary Committee (SJC). The Intel version was Republican friendly and was chosen by Senate Majority Leader Harry Reid (D-NV) as the base or favored version. It granted the retroactive immunity the telecoms had been lobbying for (not in the SJC bill), allowed basket warrants for the surveillance, not of individuals, but of classes of persons, had weak minimization (i.e. disposal of information on Americans incidentally obtained) requirements and oversight, and gave only vague assurances that the program would not be used for reverse targeting (using a foreign national as an excuse to surveil an American). An objection by Senator Chris Dodd (D-CT) threw this well orchestrated process into disarray, and Reid pulled consideration of the bill on December 17, 2007.
In January 2008, with the PAA due to expire on February 1, Reid made a second attempt to pass the Intel version. This time he was blindsided by Bush and the Republicans. Senate Republicans played politics. They refused to allow any face-saving amendments (all of which were likely to be defeated anyway) to be brought up and were willing to see the PAA expire instead. Bush for his part announced he would veto even a short extension of the PAA to give the Senate time to act. So on the one hand Bush and the Republicans argued that the PAA was absolutely necessary and if it was not passed the terrorists would win and we would all die. On the other, they were perfectly ready to see it expire just so they could stick it to Senate Democrats.
On January 28, 2008, with the SOTU scheduled for later that evening, that is what happened. In a near party line vote, Democrats defeated the Republican move (48-45 with 60 votes needed) for cloture on the Intel version of the PAA with no amendments. The Republicans then defeated a similar motion for a 30 day extension of the PAA on a straight party line vote.
So to recap briefly, Senate Democrats were ready to pass a bad bill, but the Republicans who supported the bad bill wanted to rub the Democrats’ faces in it first. As a result, everything fell apart, and the upshot was everyone could and did blame everyone else. High school was not this bad.
On January 29, 2008, a 15 day extension (to February 15, 2008) was agreed to by voice vote in the House and by Unanimous Consent in the Senate. An agreement was made to consider amendments to the PAA in return for a cloture vote. All of the amendments were rejected by Republicans voting as a bloc and conservative Democrats voting as weasels.
- SA 3915: (Feingold): stoppage of surveillance of an American upon finding of FISA court and minimization of information so acquired. Rejected: 40-56
- SA 3913 (Feingold): No reverse targeting of Americans. Rejected: 38-57
- SA 3910 (Feinstein): Exclusivity (surveillance must be conducted under FISA). Rejected: 57-41 (Needed 60)
- SA 3979 (Feingold): Segregation and audit of communications involving Americans. Rejected: 35-63
- SA 3907 (Dodd): No retroactive immunity for telecoms. Rejected: 31-67
- SA 3912 (Feingold): No bulk surveillance. Rejected: 37-60
- SA 3927 (Specter): Substitution of US for telecoms in civil suits. Rejected: 37-60
- SA 3919 (Feinstein): Transferal of civil suits to FISA court (with an eye to dismiss). Rejected: 41-57 (Needed 60)
The first two were defeated on February 7. The others on February 12, 2008. Cloture was invoked, and the bill passed in the Senate 68-29. Senate Republicans timed their votes close to the February 15 expiration date in an effort to force the House to drop consideration of its own bill and accept the Senate version without revision. Instead the Democratic House leadership played for time and sought a further 21 day extension to the PAA. On February 13, 2008, this action was defeated by House Republicans along with a small group of liberal Democrats 191-229. In effect, the liberal Democrats called the Republicans and Bush Administration’s bluff. The deadline passed, the country did not collapse, as right wing commentators ominously predicted. A few Democrats showed some backbone although the vast majority of them continued to punt or enable. Somewhat lost in all the kabuki was the real object of the exercise: to grant immunity for the telecoms. DNI Mike McConnell touched on this in a February 15, 2008 NPR interview:
The issue is liability protection for the private sector. We can’t do this mission without their help.
But even this admission is heavily spun. The telecoms have substantial protection from liability under existing law and their exposure to large payouts is minimal. The government and telecoms are intimately intertwined, and this relationship will not be changed by a failure to grant immunity to them. Further the telecoms can not duck future cooperation with the government (even if they were so inclined) if that cooperation is accompanied by a court order. No, immunity is not about protecting the telecoms (they don’t need it) but rather squelching civil lawsuits which if allowed to proceed could expose the extent of this government’s spying on its own citizens. This isn’t about national security. It is about CYA.
On June 20, 2008, the House passed the FISA Amendments Act of 2008 (HR 6304) by a vote of 293-129 with 105 Democrats, including the whole of the Democratic leadership, voting for. The bill spearheaded by the Democratic Majority leader Steny Hoyer was another cave on the part of Democrats to a deeply unpopular President at the end of his term. The text of the 114 page bill was made available to lawmakers less than 24 hours before the vote, meaning that almost no Representative actually read the bill before voting on it. No amendments were allowed, and only one hour was given for debate.
The bill granted effective retroactive immunity to telecoms in a particularly cowardly way, not by Congressional action but by shifting responsibility to the federal district court level. All that was required was that the telecoms show they had received an OK from the President. There was no requirement that they demonstrate that they thought that the President’s request was lawful or that they (with their large legal departments) made any effort to assess its legality. This would end current lawsuits against telecoms which seek to learn what kind of spying the government was doing on its own citizens.
On minimization (removal of information on untargeted Americans), the bill allowed for review by the FISA court only as to whether the government followed in general terms its own procedures, but gave the court no scope to judge the legality of the procedures themselves.
If the government disagreed with the FISA court, it could continue wiretapping throughout the appeals process and keep all information so gathered regardless of the outcome of the appeal.
The bill also contained a superfluous “exclusivity” clause making FISA the only bill through which this kind of surveillance could be carried out. I say “superfluous” because FISA already was the exclusive “legal” vehicle for such surveillance.
In short, this is a dreadful piece of legislation and shows that the rot in our body politic is not confined to the Republican Party. House Democrats could have proposed responsible, uncontroversial changes to the FISA law, but they chose instead to endorse the lawless actions of the President and the telecoms and see that the extent of that lawlessness never saw the light of day.
On July 9, 2008, the Senate easily voted down amendments to the House bill and passed it unchanged 69-28. Both Harry Reid the Senate Majority Leader (in how the bill was brought up) and the 2008 presumptive Democratic Presidential nominee Barack Obama (in not only not leading any opposition to the legislation but in fact supporting it) were instrumental in the passage of a bill codifying the power of the government to spy on its citizens without a warrant, sanctioning the illegal activities of telecoms, and hiding from public view the extent of the Bush Administration’s lawlessness in this area.
No Republican voted against the bill. 21 Democrats and Joseph Lieberman (ID-CT) voted for it.
- Baucus (D-MT)
- Bayh (D-IN)
- Carper (D-DE)
- Casey (D-PA)
- Conrad (D-ND)
- Feinstein (D-CA)
- Inouye (D-HI)
- Johnson (D-SD)
- Kohl (D-WI)
- Landrieu (D-LA)
- Lincoln (D-AR)
- McCaskill (D-MO)
- Mikulski (D-MD)
- Nelson (D-FL)
- Nelson (D-NE)
- Obama (D-IL)
- Pryor (D-AR)
- Rockefeller (D-WV)
- Salazar (D-CO)
- Webb (D-VA)
- Whitehouse (D-RI)
More on the FISA modification legislative history can be found here.
On October 9, 2008, ABCNews came out with a story (first reported on by Amy Goodman on May 13, 2008) in which whistleblowing military communications operators admitted that they had listened routinely in on phone calls of ordinary Americans overseas, that they had recorded and transcribed them, and in some cases passed them around to colleagues to gossip about and make fun of. This directly contradicted statements by George Bush and former NSA head and current CIA Director Michael Hayden that warrantless wiretapping was only directed against foreign terrorists.