Cheating Justice (9 page)

The special FISA court met in private sessions and their proceedings were confidential to protect sensitive intelligence data; the Chief Justice of the Supreme Court selected its judges from the federal bench. Congress believed that the act of requiring a warrant application and the approval of the court would keep rogue presidential or other executive-branch spying in check. The FISA law ensured that a president could not simply order up wiretapping of Americans under the pretext of foreign surveillance. The FISA law specifically stated that it was to be the “exclusive” means for conducting foreign intelligence surveillance in the United States.

Upon signing it, President Carter said, “It will assure FBI field agents and others involved in intelligence collection that their acts are authorized by statute and, if a U.S. person's communications are concerned, by a court order.”
10

The FISA law permitted retroactive applications in emergency situations—surveillance
could begin and the application need not be made for twenty-four hours (adjusted to seventy-two hours in 2002 when the law was amended). The FISA law specifically addressed wartime conditions, permitting the requirement for court approval to be suspended for fifteen days after a declaration of war. But, in adding this wartime exception, the law made it clear that war did not suspend the law in any other way. The legislative history shows that Congress actively rejected the idea that the president held any “inherent authority” to authorize wiretaps in the United States: in times of peace or war, court approval for foreign intelligence surveillance was required.

Violations of the FISA law carry a penalty of up to five years in prison and a fine of $10,000 for each incident. Use of information obtained in violation of the law is a crime, too, if the user has reason to know that the information was obtained by electronic surveillance “not authorized by statute.”

In order to address national security needs, all of the records are sealed and the target may never know about the surveillance. A yearly report tells how many warrants were issued. FISA warrant applications were almost never rejected—in the year prior to President Bush's first year in office, FISA records listed 1,005 warrant applications; all were granted. All of the 13,095 surveillance applications in the time period from 1979 (when the court started) until President Bush took office were granted, although apparently in one case, the government was asked to amend its warrant application, and a handful of others were approved with modifications, according to the Federation of American Scientists, which tracks and maintains a list of FISA reports.
11
Some privacy advocates argued that the FISA court was nothing but a rubber stamp for government surveillance and objected to it on civil libertarian grounds.

The original FISA law was updated multiple times. Updates incorporating new technologies, such as trap/pen registers that record telephone numbers like caller ID boxes, or additional categories of searches (such as physical searches of property), occurred in 1994, 1998, 1999, 2000, and thereafter.
12
The original FISA law became the “gold standard of legality” in counterintelligence, wrote the authors of a 1996 book,
Main Justice.
13

In any case, FISA worked fairly smoothly for twenty-three years, from 1978, when it was first enacted, through the tenures of Presidents Jimmy Carter, Ronald Reagan, George H. W. Bush, and Bill Clinton, and through
a series of international conflicts and wars, including the first Gulf War waged by the first President Bush.

Since President Nixon's time, some hard-liners inside the government had been rankled by limitations on executive power—and that included the FISA law. “Cheney in particular had been chafing at the post-Watergate reforms, and had longed to restore the executive branch powers Nixon had assumed,” commented investigative journalist and author Jane Mayer in an interview with Scott Horton in
Harper's Magazine.
14
After 9/11, President Bush decided to break the FISA law—more than three dozen times.

While breaking the law serially, President Bush and his team lied about these actions. In a speech in Buffalo, New York, on April 20, 2004, two and a half years after the secret warrantless surveillance began, President Bush said: “Anytime you hear the United States government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about a court order before we do so.”
15
This statement was false: it was not what President Bush was doing.

In January 2005, Alberto Gonzales, the president's White House counsel, was asked in congressional hearings whether the Bush administration would ever consider warrantless wiretapping of U.S. citizens. The situation was “hypothetical,” he told Congress, even though it had been going on for real and not hypothetically for four years. As recounted by
Washington Post
writers Dan Eggan and Amy Goldstein, after the questioner, Senator Russ Feingold, persisted, Gonzales added: “It is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes.”
16
Both of his statements were false.

 

The president ordered the National Security Agency to wiretap solely on his say-so. He did this forty-three times. Each time, he violated the FISA law, since FISA was the exclusive means by which the federal government could engage in foreign intelligence surveillance during times of war or peace—and FISA required a court order.

A review by the inspectors general of the top intelligence agencies, published as the
Unclassified Report on the President's Surveillance Program, 10 July 2009
, gives the most complete picture of the Bush surveillance programs, although many aspects are still hidden. A top-level official inside
an agency, an inspector general investigates or audits internal activities and procedures; the five involved in preparing this surveillance report were from the Department of Defense, the Central Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the Department of Justice, which also included analysis from the FBI. According to their combined report, “the President authorized the NSA [National Security Agency] to undertake a number of new, highly classified intelligence activities. All of these activities were authorized in a single Presidential Authorization that was periodically reauthorized.” One program was called the Terrorist Surveillance Program; another, simply dubbed “Other Surveillance Program” in government reports, has been kept completely under wraps. Combined, these programs are called the President's Surveillance Program.
17

These authorizations began in 2001—Vice President Cheney pinned the date at October 4, 2001, in a letter to Senator Arlen Specter, chair of the Judiciary Committee, on June 8, 2006.
18
President Bush reauthorized the illegal programs roughly every forty-five days. The president personally signed the orders.

Reports indicate that the Bush warrantless surveillance involved wholesale monitoring of communications of Americans going through routers in the United States. Many of the routed calls may not have been international at all. Mark Klein, a retired AT&T technician-turned-whistleblower, reported a wholesale data-mining dragnet of all AT&T customers' calls and e-mails, local and international, according to a 2006 article by Ryan Singel in
Wired
magazine.
19

The programs may have extended much further, to a “total information awareness” system that collected a variety of data—communications, banking, financial transactions. “The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans,” wrote Leslie Cauley in an exposé in
USA Today
in May 2006, in a “program [that] reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans.” Billions of calls were being entered into “the largest database ever assembled in the world.”
20

Each order signed by the president was accompanied by a rote red alert that attempted to justify the need for the illegal surveillance. Added by the White House to CIA assessments, the boilerplate statement said the United States was under threat from global terrorists who “possessed
the capability and intention to undertake further terrorist attacks within the United States,” according to the 2009 surveillance report by the five inspectors general. The “scary” threat assessments were relied upon as a basis for continuing the program: “if a threat assessment identified a threat against the United States the PSP [President's Surveillance Program] was likely to be renewed,” the report said.
21
Later, a memo by Jack Goldsmith in the Office of Legal Counsel revealed that the orders also relied upon confessions wrung from detainees;
22
since many detainees were subjected to torture or cruel treatment, their statements were highly unreliable.

While the president's team said that only the communications of those connected to terrorists were being surveilled, no evidence has been offered to show how the programs were limited. A West Coast foundation and its lawyers learned that they had been the subject of surveillance when the government accidentally sent a classified wiretapping report to one of the lawyers—and then ordered the lawyers to return it and to forget it, that is, to never repeat or refer to its contents, noted Charlie Savage and James Risen in the
New York Times
on March 31, 2010.
23

After the existence of the President's Surveillance Program became public in December 2005, President Bush went on the radio. He admitted that he had disregarded the law. The president confessed that he had authorized the National Security Agency to intercept the international communications of Americans—and that he did not bother getting legal approval from the FISA court. “I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups,” he said in the broadcast on December 17, 2005.
24

His violations continued for another eighteen months. The last authorization of the Terrorist Surveillance Program expired on February 1, 2007, according to the inspectors general who reviewed the program later.

To prevent himself from being held accountable, the president took the unprecedented step of blocking an inquiry into the program by the Office of Professional Responsibility in the Justice Department. The president personally refused to grant requests for security clearances to conduct the investigation. “Since its creation 31 years ago . . . OPR [Office of Professional Responsibility] has never been prevented from initiating or pursuing an investigation,” H. Marshall Jarrett, the Office's chief lawyer wrote in a memo quoted in a
Washington Post
article by Dan Eggan on July 19, 2006.
25

The president's team attempted to set up legal defenses. The president and the vice president claimed that a legal memo written by a lawyer close to the White House—John Yoo—concluded that they were entitled to conduct warrantless wiretapping, although what the actual memo said was kept secret. David Addington, counsel for Vice President Cheney, had to approve every government official who was told about the program, according to an article by Scott Shane—“Cheney Is Linked to Concealment of C.I.A. Project”—in the
New York Times
: “High-level N.S.A. officials who were responsible for ensuring that the surveillance program was legal, including the agency's inspector general and general counsel, were not permitted by Mr. Cheney's office to read the Justice Department opinion that found the eavesdropping legal.”
26

In his June 2006 letter to Senator Arlen Specter, Vice President Cheney responded to the senator's inquiry about the legal basis for the surveillance programs and whether remedial legislation might be appropriate. The vice president said: “While there is no need for any legislation to carry out the Terrorist Surveillance Program, the Administration will listen to the ideas of legislators. . . . The Department of Justice has set forth in detail in writing the constitutional and statutory bases, and related judicial precedents, for warrantless electronic surveillance.”
27
A copy of the claimed “constitutional and statutory bases, and related judicial precedents” was not provided.

But to protect themselves against charges of criminality, the president and vice president made a U-turn before they left office and engaged in an aggressive blitz to alter completely and undermine the existing FISA law with new legislation that could roll over it. Temporary legislation called the Protect America Act of 2007,
28
permitting vastly expanded surveillance without the need for court review or approval of a warrant, was pushed through Congress in August 2007 as legislators were hankering to leave for their summer recess.
29

When the temporary legislation ran out in 2008, the president warned that the country faced “more danger of attack” if Congress failed to act immediately, according to a February 15, 2008 report on CNN, and he pressed for the passage of another new law.
30
An editorial in the
New York Times
urged Congress to stand up to the White House demands: “The real reason this bill exists is because Mr. Bush decided after 9/11 that he was above the law,” the editors wrote on July 8, 2008.
31
But Congress did not stand up.

The FISA Amendments Act of 2008 (FAA) passed, and was signed on July 10, 2008.
32
This new law destroyed much of the original architecture of the FISA law. Under the new law, the attorney general authorized foreign intelligence warrants with the stroke of a pen—much like the system in place under President Nixon. The definitions of who could be surveilled under these foreign intelligence surveillance programs expanded enormously, and the role of the FISA court was hollowed out, mostly to reviewing biannually the procedures used by the attorney general, or to approving the increasingly rare cases in which a warrant was needed.