Although President Bush publicly claims he has limited spying on Americans by the National Security Agency to overseas phone calls involving members of al-Qaeda, privately he has authorized a massive multi-agency domestic surveillance operation that routinely pries into the lives of millions of Americans who have no involvement in terrorism or represent no threat to the security of the United States.
Through executive orders or – more often – clandestine powers that he believes he possesses as a “wartime President,” Bush has ordered the Pentagon, FBI, NSA and CIA to expand domestic spying operations to levels never before seen by professional operations.
“It is unbelievable,” says a former CIA operative who resigned in disgust rather than spy on his own country. “We spend more time gathering intel on Americans than we do on real enemies of our country.”
Under orders from Bush, the military has sent agents out to infiltrate anti-war groups, liberal organizations and even workforces of municipal governments considered to be opponents of the administration. In Vermont, a group of Quakers discovered a Pentagon spy in their midst.
On Wednesday, the American Civil Liberties Union in Philadelphia filed a Freedom of Information Act request seeking files on Pentagon monitoring of peace activists and other groups in that city. The move is part of a nationwide effort by the ACLU to learn just how much domestic spying is carried out by American military agents.
“Pentagon spies do not belong in Pittsburgh, in Philadelphia or in State College,“ says Mary Catherine Roper, staff attorney for the ACLU of Pennsylvania. “We don’t need the military to protect us from lawful protests by concerned citizens.”
The national ACLU filed a similar FOIA request on behalf of the American Friends Service Committee, Veterans for Peace, United for Peace and Justice and Greenpeace. Other ACLU affiliates are seeking Pentagon files on local groups in Georgia, Rhode Island, Maine, and California.
But getting details will be difficult. The Bush administration routinely fights FOIA requests, seeking protection under the controversial USA Patriot Act and citing “executive privilege” to keep White House involvement a secret.
“The Pentagon’s monitoring of anti-war protesters is yet another example of a government agency using its powers to spy on law-abiding Americans who criticize U.S. policies,” said Ben Wizner, a staff attorney with the national ACLU. “How can we believe that the National Security Agency is intercepting only al Qaeda phone calls when we have evidence that the Pentagon is keeping tabs on student activists in Pittsburgh?”
According to my contacts within the American intelligence community, the NSA is not intercepting “only al Qaeda phone calls” because the agency cannot limit its monitoring to just such calls. NSA must “cast a wide net,” monitoring thousands upon thousands of phone calls and emails of ordinary Americans in the hope of capturing just one phone call from an an-Qaeda member.
“In reality, we’re monitoring all phone calls, all emails, all forms of electronic communications,” admits a longtime NSA operative. “We listen to everyone in hopes of picking up a certain word or phrase.”
The FBI weekly issues thousands of “National Security Letters” which orders banks, employers and other entities to turn over information about Americans and forbids those same agencies from revealing they released the information. Bush wants to expand use of the national security letters but that provision in the revised USA Patriot Act has stalled permanent reauthorization as Congress granted a five-week extension Thursday while lawmakers try to work out a compromise.
In Vermont, more than half that state’s legislators have signed a letter requesting that Gov. James Douglas’ Homeland Security Advisory Council denounce President Bush’s domestic spying program.
“Vermont has always had a tradition of vigilance in matters of security and vigilance in matters of protecting individual rights from an overreaching government,” said the letter, which was drafted in mid-January and delivered to the governor’s desk late Tuesday. “Vermonters have managed in the most trying of times to balance the needs of both, when demands of one were not sacrificed for the needs of another.”
Federal law is supposed to prohibit using the NSA to spy on Americans and many legal scholars say Bush violated that law by signing executive orders authorizing the domestic spying program.
“This is one of the most serious constitutional crises that we’ve ever faced in the country,” said Jonathan Turley, a George Washington University law professor. Turley added the president’s claim of executive authority based on Article II “would put our system on a slippery slope.”
“The president’s use of the war resolution borders on absurdity,” Turley continues. “To have the attorney general putting forward an interpretation that he cannot possibly believe is true — because he’s not a moron — is deeply disturbing.”
Legal scholars have joined with former government officials in an open letter to Congress to question the President’s actions.
We are scholars of constitutional law and former government officials. We write in our individual capacities as citizens concerned by the Bush administration’s National Security Agency domestic spying program, as reported in The New York Times, and in particular to respond to the Justice Department’s December 22, 2005, letter to the majority and minority leaders of the House and Senate Intelligence Committees setting forth the administration’s defense of the program. Although the program’s secrecy prevents us from being privy to all of its details, the Justice Department’s defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law,” he letter says.
William and Mary Law Professor William W. Van Alstyne is among the 14 scholars and former officials who signed the letter.
“At an earlier time, kings of England could ignore acts of Parliament and were, indeed, above the law. It was part of the very design of our Constitution that no one elected president would fancy himself to possess any similar prerogative,” Van Alstyne says. “So, now, the proposition is once again being tested. It is no small matter, and I would have felt professionally derelict not to join in a public statement that simply straightforwardly articulates why all who care about the integrity of our constitutional system and of the rule of law itself should do all they can to preserve it rather than have it subverted by instruments of executive stealth.”
Among those who signed the letter is former FBI director William Sessions who calls the entire concept of domestic spying “a gross violation of basic American rights and a colossal abuse of Presidential power.”