Bush-NSA Spying in Defiance of Congress, Court

By Jason Leopold
t r u t h o u t | Investigative Report

The Bush administration was publicly admonished by a senate committee, and a special surveillance court, in two separate instances for repeatedly trying to skirt the law in obtaining top-secret warrants to spy on American citizens suspected of having ties to terrorists. Despite the public rebuke, President Bush circumvented the judicial process and secretly authorized the National Security Agency to spy on thousands of individuals in the United States in defiance of the very court that issued a legal opinion saying the administration was already infringing on civil liberties in other domestic spy cases.

Securing top-secret surveillance warrants from a special court after 9/11 was proving to be hugely problematic for the Justice Department, and led a senate committee to issue an extraordinary report more than two years ago criticizing federal law enforcement officials for failing to properly follow routine guidelines in their efforts to obtain warrants for eavesdropping on Americans suspected of having ties to terrorists.

The Senate Judiciary Committee report issued in February 2003 may help explain why President Bush authorized the National Security Agency to spy on Americans without seeking prior approval from the Foreign Intelligence Surveillance Court, which for more than two decades has handled domestic spying activities.

The report singled out the FBI, and said the bureau's agents, whose job it is to obtain the surveillance warrants from the special court to collect intelligence information in the fight against terrorism, were inadequately trained in important aspects of not only the procedures to obtain warrants to spy on Americans under the Foreign Intelligence Surveillance Act (FISA), "but also fundamental aspects of criminal law."

The recent discovery of the NSA surveillance program caused a backlash against the administration by the legal community and led a judge who sits on the Foreign Intelligence Surveillance Court to resign in protest two weeks ago. The surveillance court, established by Congress in 1978 to grant warrants in terrorism and espionage cases, said it wants the Bush administration to explain why it bypassed the court and ordered eavesdropping without warrants.

Details in the 2003 senate committee report may offer an explanation. The report cited numerous problems associated with the way some officials in the Bush administration interpreted the FISA law, found a "breakdown of communication among all those involved in the FISA application process," and noted that "most disturbing is the lack of accountability that has permeated the entire application procedure."

"In fact, the bureaucratic hurdles erected by Headquarters (and DOJ) not only hindered investigations but contributed to inaccurate information being presented to the FISA Court, eroding the trust in the FBI of the special court that is key to the government's enforcement efforts in national security investigations," the report states.

President Bush and Attorney General Alberto Gonzales have said over the past few weeks that the court process was cumbersome. Still, since 9/11, the administration requested and received approval for more than 5,000 special warrants to monitor personal email accounts and conduct top-secret wiretaps of people believed to be al-Qaeda associates, according to public documents contradicting the president and attorney general's claims that the court moved too slowly in some cases.

Bush tried to explain the reasons the administration may seek approval from the special court to eavesdrop on a suspected terrorist and why, in some cases, the NSA conducts its own surveillance absent a warrant. At a December 19 press conference at the White House, he said the administration still seeks FISA warrants "for long-term monitoring," but needs the flexibility of the NSA program.

Bush said, "This is a different era, a different war.... People are changing phone numbers and phone calls, and they're moving quick. And we've got to be able to detect and prevent ... it requires quick action."

But the surveillance court has rejected just five of the nearly 19,000 requests for warrants it has received since 1979 and the warrants can be applied retroactively, meaning that the administration can begin a domestic spy operation and take up to 15 days to file a warrant request with the court.

President Bush says he has the legal authority to authorize the National Security Agency to continue eavesdropping on citizens and monitoring emails without judicial oversight, but many Democratic and Republican lawmakers are questioning whether the president violated the law in doing so.

The surveillance court has also questioned the legality of Bush's actions. The Justice Department's attempts to broaden the FBI's spying abilities after 9/11 became (such) a major concern for the surveillance court that in May 2002 it secretly ordered Attorney General John Ashcroft to scale back the plans to expand the FBI's powers because it infringed on civil liberties, according to a May 17, 2002 Foreign Intelligence Surveillance Court document.

After the Patriot Act was first approved in 2001 and a key 2002 court decision dismantled the legal wall separating the FBI's criminal and intelligence probes, the sharing of information became easier and the use of FISA warrants increased.

Ashcroft is credited with breaking down the wall that former Attorney General Janet Reno had erected in the mid-1990s that separated intelligence-gathering investigations and criminal probes to safeguard against unnecessary invasion of privacy. Federal investigators were incensed by Reno's plan, which said that intelligence agents cannot share information with criminal prosecutors, who have to meet higher legal standards to be granted warrants to conduct wiretaps and searches.

But in March 2002, Ashcroft presented a plan to the FISA court that would allow criminal prosecutors to participate in intelligence operations in the fight against terrorism. The May 17, 2002 surveillance court ruling reined Ashcroft in, and said that he overstepped his authority by loosening the rules governing intelligence gathering. Specifically, the court said Ashcroft's plans "are NOT reasonably designed" to safeguard privacy rights.

"The 2002 procedures appear to be designed to amend the law and substitute the FISA [i.e. the less demanding intelligence surveillance standards] for Title III electronic surveillances [i.e. the more demanding law enforcement standards]. This may be because the government is unable to meet the substantive requirements of these law enforcement tools, or because their administrative burdens are too onerous," the court document says.

The Senate Judiciary Committee also had concerns. The committee met privately with Ashcroft and other Justice Department officials after the Patriot Act was signed into law by President Bush on October 26, 2001. That's when Ashcroft had started to press Congress to make additional changes to FISA requirements, including changing the definition of "foreign power" to include "individual, non-U.S. persons engaged in international terrorism."

"DOJ explained that this proposal was to address the threat posed by a single foreign terrorist without an obvious tie to another person, group, or state overseas. Yet, when asked to 'provide this Committee with information about specific cases that support your claim to need such broad new powers,' DOJ was silent in its response and named no specific cases showing such a need, nor did it say that it could provide such specificity even in a classified setting," the Senate Judiciary Committee report states.

"In short, DOJ sought more power but was either unwilling or unable to provide an example as to why," the report added.

Part of the reason the FISA court refused to allow the Justice Department to expand its intelligence gathering operations goes back to the Clinton administration. In the court's May 17, 2002 opinion, it said there were more than 75 cases where "FISA applications related to major terrorist attacks directed against the United States" contained errors or false information.

Ashcroft appealed the decision. In November 2002, the court of review reversed the FISA court's decision and granted Ashcroft the broad powers he had originally sought. Still, even with the additional spying powers that now made it even easier to obtain surveillance warrants, President Bush continued to end-run the system and use the NSA to spy on Americans.

This past June, the Justice Department once again sought to broaden the scope of the Patriot Act by giving the FBI even more powers, specifically allowing the agency to bypass the FISA court if it uncovered an immediate threat to national security, which is exactly what President Bush said was the reason he had bypassed the FISA court and used the FBI to spy on Americans previously.

The FBI suggested under those extraordinary circumstances that Congress should amend the Patriot Act to provide the FBI with the authority to issue its own subpoenas without prior approval from a court. This would allow it to obtain documents, such as emails and phone records, from individuals who may have ties to terrorist groups. The FBI argued that requesting approval from a court such as the FISA court might result in an "unacceptable delay" and further threaten national security.

But in a June 17 report, the Senate Intelligence Committee said there was no reason to change the Patriot Act to grant the FBI more authority than it already possesses since the FBI could not produce any evidence where national security would be further threatened by a court taking too long to approve warrants or subpoenas.

"When testifying before the Committee, the FBI could not document significant past or current instances when national security investigations faltered or were hindered due to lack of an administrative subpoena authority," the report says. "The FBI argued that such a circumstance could exist in the future when immediacy might dictate moving quickly with a subpoena for records without prior judicial review. This may be true, but based on both demonstrated and anticipated need, the use of any such authority without prior review should be the exception, not the rule."

The committee report added that federal law enforcement officials should continue to seek approval for obtaining records from the FISA court because the court provides an "important check against potential abuse in the investigative process." Circumventing the court "effectively puts the court out of business," and "puts the current subpoena authority of the court in the hands of the investigators."

"This is not necessary, justified, or wise," the report states.