A Newsweek article asserted that the reaction to the Bush administration's warrantless domestic spying program was "predictably partisan," even though numerous Republican elected officials, conservative commentators, and newspapers that endorsed President Bush's re-election in 2004 also criticized the program.
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A January 9 Newsweek article by assistant managing editor Evan Thomas and Washington bureau chief Daniel Klaidman asserted that after The New York Times broke the story that President Bush, apparently in violation of the Foreign Intelligence Surveillance Act (FISA), has repeatedly authorized the National Security Agency to conduct wiretaps of people in the United States without obtaining a warrant, "[t]he reaction was predictably partisan." According to Thomas and Klaidman, "Most Republicans and conservatives defended Bush for safeguarding the country (though warrantless spying gave libertarians some pause)," and most Democrats and liberals cited the program as evidence that Bush and Cheney "were running roughshod over civil liberties." But, contrary to Thomas and Klaidman's suggestion, numerous Republicans and conservatives have criticized the program, and it has inspired in some far more than mere "pause"; Bruce Fein, a noted conservative who served as deputy attorney general for President Reagan, said that Bush may have committed an impeachable offense. In addition, at least six newspapers that endorsed Bush's re-election in 2004 have criticized his surveillance program.
From the January 9 Newsweek article:
Asserting the broad warmaking powers conferred on the president by Article 2 of the Constitution and by a post-9/11 congressional resolution authorizing the use of force to combat global terror, Bush repeatedly approved of what the NSA calls a "special collection program" that eavesdropped--without warrants--on about 500 Americans a day.
When the story of the NSA's program broke in The New York Times on Dec. 16, there was an immediate uproar in the press and on Capitol Hill. The reaction was predictably partisan. Most Republicans and conservatives defended Bush for safeguarding the country (though warrantless spying gave libertarians some pause). Most Democrats and liberals cited the eavesdropping program as more damning evidence that Bush and Cheney, already caught countenancing torture and jailing detainees without any legal rights, were running roughshod over civil liberties.
Media Matters for America has compiled a list of current and former Republican officials and media figures who have criticized or raised questions about Bush's surveillance program. (A hat-tip to Think Progress for pulling together several of these examples, here and here.)
- Sens. Chuck Hagel (R-NE) and Olympia Snowe (R-ME), both members of the Senate Select Committee on Intelligence, signed a December 19 letter calling for immediate hearings on Bush's surveillance program. Along with three of the committee's Democrats, Hagel and Snowe stated:
We write to express our profound concern about recent revelations that the United States Government may have engaged in domestic electronic surveillance without appropriate legal authority. These allegations, which the President, at least in part, confirmed this weekend require immediate inquiry and action by the Senate.
We respectfully request that the Select Committee on Intelligence and the Committee on the Judiciary, which share jurisdiction and oversight of this issue, jointly undertake an inquiry into the facts and law surrounding these allegations. The overlapping jurisdiction of these two Committees is particularly critical where civil liberties and the rule of law hang in the balance.
A December 22 article in the Lincoln (Nebraska) Journal Star quoted Hagel as saying, "No president is ever above the law. ... We are a nation of laws. You cannot avoid or dismiss a law." The Journal Star added: "At issue, Hagel said, is whether the decision to order such surveillance violates a 1978 law [FISA] requiring approval by a secret U.S. foreign intelligence surveillance court."
- Senate Judiciary Committee chairman Arlen Specter (R-PA) has agreed to hold hearings on Bush surveillance program. As a December 20 New York Times article noted, Specter said he was "skeptical" of Attorney General Alberto R. Gonzales' assertion that "this electronic surveillance is within the law, has been authorized" by Congress. The Times reported:
Mr. Specter, who has said he will hold hearings on the program soon after the confirmation hearings for the Supreme Court nominee, Judge Samuel A. Alito Jr., said he did not believe the president's decision to inform a handful of members of Congress was sufficient.
''I think it does not constitute a check and balance,'' he said. ''You can't have the administration and a select number of members alter the law. It can't be done.''
- Sen. Richard Lugar (R-IN), on the January 1 edition of CNN's Late Edition with Wolf Blitzer, also called for congressional hearings on Bush's surveillance program:
BLITZER: Speaking of intercepts, how comfortable are you with the president's now publicly acknowledged decision right after 9-11 to authorize secret wiretap surveillance of American citizens, among others, involved in overseas phone calls or e-mails or faxes without getting a formal court order?
LUGAR: Well, I can understand in the context of 9-11 that there may have been, in a common sense way, a reason why calls coming from the Middle East or Afghanistan to America might be intercepted, but I think the Congress quite rightly is trying to take a look at now the fact that we're past 9-11, we're going to have to live with the war on terror for a long while. And whether it's the treatment of prisoners that we've been discussing, for example, or elements of the Patriot Act, likewise intercepts are going to have to be given, I think, a pretty good hearing. And what --
BLITZER: So you want hearings? You want hearings?
LUGAR: I do. I think this is an appropriate time, without going back, and should the president ever have tried to listen to a call coming from Afghanistan, probably of course. And in the first few weeks we made many concessions in the Congress because we were at war and we were under attack. We still have the possibility of that going on, so we don't want to obviate all of this, but I think we want to see what in the course of time really works best, and the FISA act has worked pretty well from the time of President Carter's day to the current time.
- Sen. Susan Collins (R-ME), according to a December 17 Portland (Maine) Press Herald article, "called the allegations of surveillance abuses 'extremely troubling.' Collins said the report 'warrants further inquiry by Congress' and that she has asked the NSA for a full briefing."
- Sen. John E. Sununu (R-NH) told the Manchester, New Hampshire, Union Leader, "We need to have the appropriate committees of Congress undertake hearings." According to a December 20 Union Leader article, Sununu questioned the Bush administration's claim that the warrantless surveillance program was covered by Congress' post-September 11 authorization of the use of force against terrorist targets:
Sununu said at first glance, he believes "it is a little bit of a stretch" for the administration to say the surveillance program was authorized by the post-Sept. 11 resolution.
That resolution says the President "is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
"I don't think the 'use of force' resolution authorized this use of NSA resources for domestic surveillance," Sununu said. "This is the kind of activity that should be approved in statute."
- Sen. Larry Craig (R-ID) and Rep. C.L. "Butch" Otter (R-ID) "say they are bothered by the potential privacy abuses with warrantless wiretaps of U.S. citizens' international communications," according to a December 24 Associated Press report:
"I'm not in a position to say yes or no, but obviously, the president had by his interpretation the authority," said Craig. "At the same time, I'm particularly concerned about the long-term effect of the line we may be crossing. When we flipped the FISA over from just foreign governments and known spies and blended it into a gray area of the Patriot Act, we're now talking about somebody who we have reason to believe is connected to a foreign government, but they are a U.S. citizen."
Otter, who represents Idaho's western half and Panhandle in the 1st District, agreed there are good reasons to monitor telephone calls and e-mail of suspected terrorists. But he said there is a clearly established process of judicial oversight through the Foreign Intelligence Surveillance Act (FISA) Court to obtain warrants for such wiretapping. And he is concerned that the White House appears to have circumvented that process.
"The Founders envisioned a nation where people's privacy was respected and the government's business was open," Otter said in a prepared statement in response to questions from The Associated Press. "These actions turn that vision on its head. If the government is willing to bend the rules on this issue, how are we supposed to believe it won't abuse the powers granted by the Patriot Act?"
- Sen. Lindsey Graham (R-SC) said on the December 18 broadcast of CBS' Face the Nation that "I don't know of any legal basis to go around" FISA's requirement the government obtain a warrant to conduct domestic surveillance of Americans:
GRAHAM: If he has the authority to go around the FISA court, which is a court to accommodate the law of the war on terror, the FISA Act was -- created a court set up by the chief justice of the United States to allow a rapid response to requests for surveillance activity in the war on terror. I don't know of any legal basis to go around that. There may be some, but I'm not aware of it. And here's the concern I have. We can't become an outcome-based democracy. Even in a time of war, you have to follow the process, because that's what a democracy is all about: a process.
- Sen. John McCain (R-AZ) said on the December 18 broadcast of ABC's This Week: "Why did the president choose not to use FISA? That's a legitimate question."
McCAIN: I know that the leaders of Congress were consulted, and that's a very important part of this equation. I know that the situation has changed since September 11th. I think that we need to know, and I know these questions will be asked, and the White House will be required to answer why they didn't go through the normal FISA, as we call it. For the benefit of our viewers that don't know what FISA is, it's going to a special court --
GEORGE STEPHANOPOULOS (host): You go to a court and get the order.
McCAIN: -- yeah, in Washington, D.C., and get the order to -- to practice surveillance. We need to have that answer. But I do believe that we all know that since September 11th, we have new challenges with enemies that exist within the United States of America. So the equation has changed. Why did the president choose not to use FISA? That's a legitimate question.
- Former Rep. Bob Barr (R-GA) wrote in an article in the January 9 issue of Time magazine:
Exactly like Nixon before him, Bush has ordered the National Security Agency (NSA) to conduct electronic snooping on communications of various people, including U.S. citizens. That action is unequivocally contrary to the express and implied requirements of federal law that such surveillance of U.S. persons inside the U.S. (regardless of whether their communications are going abroad) must be preceded by a court order. General Michael Hayden, a former director of the NSA and now second in command at the new Directorate of National Intelligence, testified to precisely that point at a congressional hearing in April 2000.
Alleged associates of al-Qaeda are today's targets of that breathtaking assertion of presidential power. Tomorrow, it may be your phone calls or e-mails that will be swept up into our electronic infrastructure and secretly kept in a growing file attached to your name. Then everyone you contact could become a suspect, a link in an ever lengthening chain that would ensnare us all in the files of the largest database ever created through unlimited electronic spying that touches every aspect of our lives.
- Bruce Fein, who served as deputy attorney general for President Reagan, and Norman J. Ornstein, a resident scholar at the American Enterprise Institute, suggested on the December 19 broadcast of the National Public Radio (NPR)-distributed Diane Rehm Show that Bush's approval of the warrantless surveillance program may be an impeachable offense:
REHM: And here's an email from [listener] in Breedsville, Michigan, who, picking up on the earlier conversation and earlier email, says, "So, again, is spying on the American people as impeachable an offense as lying about having sex with an intern?" Bruce.
FEIN: I think the answer requires at least in part considering what the occupant of the presidency says in the aftermath of wrongdoing or rectification. On its face, if President Bush is totally unapologetic and says I continue to maintain that as a wartime president I can do anything I want -- I don't need to consult any other branches -- that is an impeachable offense. It's more dangerous than Clinton's lying under oath because it jeopardizes our democratic dispensation and civil liberties for the ages. It would set a precedent that, as [former Supreme Court Justice] Robert Jackson said, would lie around like a loaded gun, able to be used indefinitely for any future occupant.
REHM: Norm Ornstein.
ORNSTEIN: Well, I think if we're going to be intellectually honest here, this really is the kind of thing that Alexander Hamilton was referring to when impeachment was discussed. In an ideal -- not quite ideal -- but I think the best way to handle this at this point would be for Congress to re-pass FISA. Send it to the president. If he believes in what he believes, let him veto it. They'll override that veto. Then if he continues to do what he's been doing, you move to a very different level of confrontation.
In a December 20 Washington Times column, Fein stated:
President Bush presents a clear and present danger to the rule of law. He cannot be trusted to conduct the war against global terrorism with a decent respect for civil liberties and checks against executive abuses. Congress should swiftly enact a code that would require Mr. Bush to obtain legislative consent for every counterterrorism measure that would materially impair individual freedoms.
The president maintained that, "As a result [of the NSA disclosure], our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk." But if secrecy were pivotal to the NSA's surveillance, why is the president continuing the eavesdropping? And why is he so carefree about risking the liberties of both the living and those yet to be born by flouting the Constitution's separation of powers and conflating constructive criticism with treason?
In a December 28 Washington Times column, Fein added:
Volumes of war powers nonsense have been assembled to defend Mr. Bush's defiance of the legislative branch and claim of wartime omnipotence so long as terrorism persists, i.e., in perpetuity. Congress should undertake a national inquest into his conduct and claims to determine whether impeachable usurpations are at hand. As Alexander Hamilton explained in Federalist 65, impeachment lies for "abuse or violation of some public trust," misbehaviors that "relate chiefly to injuries done immediately to the society itself."
Congress should insist the president cease the spying unless or until a proper statute is enacted or face possible impeachment. The Constitution's separation of powers is too important to be discarded in the name of expediency.
- William Safire, a former speechwriter for President Nixon, wrote in his December 30, 2005, New York Times column, which was in the form of a "Beat the Pundit" questionnaire:
The Robertscalito court will: (a) in the Texas case disengage from involvement in states' redistricting; (b) go the other way in Oregon, holding that federal power to prohibit substances trumps a state's authority to permit physician-assisted suicide; (c) decide that federal funds can be denied to law schools that prohibit military recruitment on campus; (d) uphold McCain-Feingold, enabling Congress to restrict political contributions but not expenditures; (e) reassert citizens' Fourth Amendment protection from "security letters" and warrantless surveillance.
In an appearance on the January 1 broadcast of NBC's Meet the Press, Safire added in reference to Bush's surveillance program:
SAFIRE: During wartime, we have this excess of security, and afterwards we apologize. And that's why I offended a lot of my conservative and hard-line friends right after September 11th, when they started putting these captured combatants in jail, and said the president can't seize dictatorial power. And a lot of my friends looked at me like I was going batty. But now we see this argument over excessive security, and I'm with the critics on that.
- Washington Post columnist George F. Will wrote in his December 20 column:
On the assumption that Congress or a court would have been cooperative in September 2001, and that the cooperation could have kept necessary actions clearly lawful without conferring any benefit on the nation's enemies, the president's decision to authorize the NSA's surveillance without the complicity of a court or Congress was a mistake. Perhaps one caused by this administration's almost metabolic urge to keep Congress unnecessarily distant and hence disgruntled.
- Robert A. Levy, a senior fellow in constitutional studies at the libertarian Cato Institute and a Federalist Society member, in a question-and-answer exchange with Federalist Society member David B. Rivkin Jr.:
RIVKIN: Why can't the President's use of warrantless surveillance in this instance be justified under the Foreign Intelligence Surveillance Act (FISA), especially since FISA requires a "reasonable expectation of privacy" to exist before a FISA warrant is required?
LEVY: The text of FISA §1809 is unambiguous: "A person is guilty of an offense if he intentionally engages in electronic surveillance ... except as authorized by statute." That provision covers communications from or to U.S. citizens or permanent resident aliens in the United States. Moreover, Title III (the Wiretap Act) further provides that "procedures in this chapter and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance ... may be conducted."
To be sure, FISA's prohibition on unauthorized electronic surveillance applies "under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes." §1801(f). Surely, U.S. citizens and permanent resident aliens have a reasonable expectation of privacy in their international phone calls and emails. Accordingly, warrants would be required for law enforcement purposes and, therefore, warrantless surveillance absent an authorizing statute would violate the FISA requirement.
I know of no court case that has denied there is a reasonable expectation of privacy by U.S. citizens and permanent resident aliens in the types of wire communications that are reportedly monitored by the NSA's electronic surveillance program. Perhaps there are some international satellite or radio communications that do not come under FISA's prohibition because the correspondents could not reasonably expect privacy. But the president has made no such showing to Congress, the courts, or the public.
- Chicago Tribune columnist Steve Chapman -- who in an October 24, 2004, column identified himself as "a small-government, pro-life libertarian" despite his support for then-presidential candidate Sen. John Kerry (D-MA) -- wrote in his December 25 column:
The disclosure that the president authorized secret and probably illegal monitoring of communications between people in the United States and people overseas again raises the question: Why?
The government easily could have gotten search warrants to conduct electronic surveillance of anyone with the slightest possible connection to terrorists. The court that handles such requests hardly ever refuses. But Bush bridles at the notion that the president should ever have to ask permission of anyone.
What we have now is not a robust executive but a reckless one. At times like this, it's apparent that Cheney and Bush want more power not because they need it to protect the nation, but because they want more power. Another paradox: In their conduct of the war on terror, they expect our trust, but they can't be bothered to earn it.
At least six newspaper editorial boards that endorsed Bush in 2004 have raised objections to his warrantless domestic surveillance program:
- Houston Chronicle, December 17:
You can't take your eyes off this crowd for a second. No sooner had President Bush, out of no motivation beyond political necessity, capitulated on the McCain anti-torture proviso than the New York Times reported that for more than three years Bush has authorized warrantless domestic eavesdropping. What will crawl out from under the Oval Office rug next? What constitutional mutation will come to light? What new way will be found to diminish distinctions between a free society and the benighted civilization terrorists want to impose?
- Chicago Tribune, December 19:
This [wiretapping] may also be a violation of American law, which requires that a special court issue warrants for wiretaps on communications originating in the United States. Some officials familiar with the program said it is illegal. But a Justice Department memo took the radical position that the congressional resolution authorizing the president to act against Al Qaeda enabled him to use methods that were previously forbidden.
On Saturday, President Bush strongly defended the program, saying it has "helped detect and prevent possible terrorist attacks" here and abroad. Had the administration really believed it had congressional consent for spying on Americans at home, it could have asked for legislation to affirm that. It didn't, for the obvious reason that Congress would not have agreed.
- The San Diego Union-Tribune, December 20:
We are inclined to accept the administration's contention that the warrantless searches have been employed only in a limited number of cases involving persons with links to al-Qaeda. Nevertheless, the real danger here is that there is absolutely no oversight of the NSA's surveillance program, and therefore absolutely no safeguard against abuses in the future.
Do we really want to trust this administration -- and every one that follows it -- to engage in secret spying on Americans? Should any government be trusted with absolute power to eavesdrop on its citizens without any checks imposed by law and without any judicial review?
- The Denver Post, December 21:
In this time of heightened risk, there is a deep need for spying. But it should be done within the law. Bush himself said in April 2004 that "When we're talking about chasing down terrorists, we're talking about getting a court order before we do so." The White House said the president's comments applied to roving wiretaps allowed under the Patriot Act, not eavesdropping for foreign intelligence. No wonder the Senate moderates want safeguards.
- The Columbus (Ohio) Dispatch, December 22:
Bush was defiant at a Monday news conference, saying the warrantless eavesdropping is legal and necessary to move fast enough to track the movements of people in the United States suspected of having connections to terrorism.
He said the operations curtailed terrorist activity. Federal officials said the process helped capture a Columbus trucker, Iyman Faris, who has pleaded guilty to plotting to destroy the Brooklyn Bridge.
Nevertheless, the president and his agents did not have to break the 1978 law. It contains emergency provisions that let federal agents get court approval up to 72 hours after the surveillance begins. Furthermore, the secret courts rarely have rejected requests for surveillance approval.
- The Hartford Courant, December 30:
The White House insists that the president has the legal power to authorize wiretaps without warrants in emergencies. If so, why maintain the surveillance court, whose job it is to review applications for classified wiretaps?
If the White House believes FISA has become irrelevant in the post-9/11 era, it should persuade Congress to dissolve the court. Acting unilaterally without any feedback or review from a court created for that purpose runs counter to the principle of government accountability.