When we learned earlier this week that the Pentagon has been spying on law-abiding, anti-war protestors, it was more than a little disconcerting. But learning that the Bush White House quietly allowed the National Security Agency to spy on Americans, on U.S. soil, without getting a warrant, is even worse.
Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.
The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.
“This is really a sea change,” said a former senior official who specializes in national security law. “It’s almost a mainstay of this country that the N.S.A. only does foreign searches.”
Not anymore.
It appears we have John Yoo, a former official in the Justice Department’s Office of Legal Counsel, to thank for this; Yoo told the White House that warrantless NSA eavesdropping “could be seen as infringements of individual liberties,” but are “justified” in the war on terror.
You may recall Yoo from the torture-memo stories — he was the one who, as Salon’s Tim Grieve noted, “opined that the president has virtually limitless power in the time of war.”
Kate Martin, director of the Center for National Security Studies at George Washington University, told the Washington Post that the secret order may amount to the president authorizing criminal activity.
The law governing clandestine surveillance in the United States, the Foreign Intelligence Surveillance Act, prohibits conducting electronic surveillance not authorized by statute. A government agent can try to avoid prosecution if he can show he was “engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction,” according to the law.
“This is as shocking a revelation as we have ever seen from the Bush administration,” said Martin, who has been sharply critical of the administration’s surveillance and detention policies. “It is, I believe, the first time a president has authorized government agencies to violate a specific criminal prohibition and eavesdrop on Americans.”
Atrios noted this morning that this is “the test” for conservatives. I agree. Partisan allegiance aside, if you’re not bothered by the White House sanctioning the NSA to spy on Americans, without an easily-obtained warrant, there’s just no hope.