Mass Surveillance Not Legal

I am not sure why it is even a question whether the President has the right to spurious surveillance of U.S. citizens, but apparently it is. A report released on January 5, 2005 by the Congressional Research Services, states that Bush likely exceeded his authority in authorizing the NSA to engage in warrantless wiretaps.

At the root of the Bush argument is that he has limitless power as president in a time of war. First, while the scope of presidential authority during war time is broad, but not limitless - and not without oversight. Bush, and administration functionaries and flunkies have consistently made this argument, and within the scope of that assumed power is also a limitless range of what gets defined as "national security." The transcripts of the Cheney energy meetings are one example, and Bush Senior's papers are another.

At the heart of the presidential powers that Bush argues for, is that we are at "war." However, that "war" is an ever shifting chimera called the "war on terrorism." We have been told that there is no specific enemy in this "war," that it is global in reach, and that it will last for generations. If we accept the war on terrorism as a legitimate and legal war, then we are essentially making a dictator out of the presidency no matter who is in office. We are accepting a limitless scope of authority beyond the law, the Constitution, and any Congressional oversight - into perpetuity.

However, the "war on terrorism" is more in the nature of the "war on crime," the "war on drugs," and the "Cold war," than war within a Constitutional context. By this definition, Nixon, Reagan, Kennedy, Johnson, Ford, Bush Sr., and Clinton, could all have legitimately claimed the same powers that George W. Bush lays claim to. All of them were fighting the "Cold War."

If the "war" that Bush claims gives him this power is the war in Iraq, then he proclaimed the end of that war almost two years ago. Troops in Iraq are not at war - they are on a peacekeeping mission. Hence, the Iraq "war" is no more, and if Bush wants to claim war powers, he will need to unilaterally declare war on someone else. Perhaps that is why the preparations seem to be moving towards attacking Iran.

In reading the CRS report, it seems clear that Bush's authorization of domestic wiretapping exceeded both law and the Constitution. The questions remain because it is unknown what the actual scope of the NSA program includes. The concluding paragraph of the CRS report summarizes this:

"From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of "electronic surveillance" within the meaning of FISA or any activity regulated under Title III, Congress intended to cover the entire field with these statutes. To the extent that the NSA activity is not permitted by some reading of Title III or FISA, it may represent an exercise of presidential power at its lowest ebb, in which case exclusive presidential control is sustainable only by "disabling Congress from acting upon the subject." While courts have generally accepted that the President has the power to conduct 141 domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on 142 the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information. Given such uncertainty, the Administration's legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests."

It seems entirely likely that the NSA program was initiated well before "war" was declared, or any possible interpretation of Congress seceding war powers to the President. In fact it may have started as early as October 1, 2001. This is when General Hayden, who was then head of the NSA, said that he had Presidential Authorization to expand the scope of the NSA. Further, the NSA took the fruits of their labors, data mined it, and shared it with other agencies. That has raised further questions about the status of cases where that information may have been used, but not revealed.

News Reports
Basis for Spying in U.S. Is Doubted

1/07/06 Report Rebuts Bush on Spying