Was Gonzales's Historical Defense of Eavesdropping Convincing?

In December 2005, after withholding the story for a year, the New York Times revealed to the public that President George W. Bush had authorized an illegal National Security Agency program. Through this program the NSA eavesdropped on American phone calls (and the like) without first obtaining a warrant from the secretive Foreign Intelligence Surveillance Court, which by federal law is required. In response, the administration claimed it did not need warrants and purported that the program was legal by citing Congress’s post-September 11, 2001 authorization of military force and Article II of the US Constitution. The congressional war authorization, however, mentioned nothing about eavesdropping nor did legislators, by their own accounts, intend that it should. Further, while the president is charged in Article II with defending the country, it also directs him to “take care that the laws be faithfully executed.”

As a companion to its questionable legal claims, the administration then began to refer to its eavesdropping as the “terrorist surveillance program” to downplay its obvious legal problems and to frame the administration’s argument within a national security context. Shortly thereafter the president began to claim, without offering any details, that previous presidents had “used the same constitutional authority” as he had to conduct warrantless surveillance. Only when Attorney General Alberto Gonzales testified before the Senate Judiciary Committee on February 6 did we learn more. Gonzales claimed that “Presidents throughout our history have authorized the warrantless surveillance of the enemy during wartime,” and, unlike Bush, he identified who these presidents were. The question is thus raised: is President Bush’s NSA surveillance program justified by historical precedent?

Gonzales first cited General George Washington and his desire to intercept and open British mail to learn valuable intelligence. The problem here is twofold: Washington was not president at the time, and the United States Constitution and Bill of Rights had not yet been conceived or written. How this can be construed as “the same constitutional authority” as Bush is claiming for himself is dubious. (But it does beg the question: is the government also currently reading our mail?) The attorney general next cited a Civil War precedent. President Abraham Lincoln received valuable intelligence intercepted without warrants from telegraph lines. But during the 19 th century, when telegraphy was in its infancy, there was no statute outlawing wiretapping or requiring the president to obtain a warrant to intercept telegraphic communications. Additionally, because it was considered an insurrection, there was no congressional authorization for war between 1861 and 1865. The Civil War, moreover, did not involve concerns with foreign intelligence, subversion, or terrorism. Asserting that this is “the same” as Bush’s authorization of warrantless NSA eavesdropping is, and should be, puzzling to Americans.

Gonzales then made two references to 20 th century presidents: Woodrow Wilson and Franklin Roosevelt. Wilson, Gonzales said, based his interception of telegraph, telephone, and cable communications on Congress’s war declaration and the president’s Article II powers. While Wilson did issue his executive order 2604 on these two premises, is what Wilson did comparable to Bush’s NSA snooping? A reading of executive order 2604 reveals that it only required owners of telegraph, telephone, and undersea cable communications companies to not transmit or receive foreign messages except under the publicly known censorship “rules and regulations” established by the War and Navy Departments. The NSA secured the voluntarycooperation of telecommunications companies to win top secret access to their extensive communication switches through which most American phone calls are routed; they were not compelled to do so, and we know of no bureaucratic rules or regulations for the NSA snooping. President Wilson for that matter did not have to consider a foreign intelligence surveillance law that required court-issued warrants. How this is somehow comparable to Bush’s authorization and eavesdropping is mystifying.

Gonzales lastly referenced President Franklin Roosevelt’s authorization of the interception of all communications in and out of the United States following the Pearl Harbor attack in 1941. Yet unlike his Wilson example, Gonzales offered no citation of an executive order or anything else demonstrating how Roosevelt used “the same” constitutional authority as argued by Bush.

More instructive, however, is the history behind the United States Congress’s adoption of the Foreign Intelligence Surveillance Act. In 1934 Congress passed the Federal Communication Act which outlawed the interception and divulgence of wire or radio communications. The law was later upheld by two companion Supreme Court rulings, Nardone v. US, in 1937 and 1939. But with the crisis of World War II mounting, in May of 1940 President Roosevelt secretly authorized the use of wiretaps in national defense cases if approved by the attorney general. Roosevelt further directed that the use of wiretaps be kept to a “minimum” and limited “insofar as possible” to foreign nationals. (Because this authorization was not justified using any congressional mandate, war declaration, or constitutional powers, resting instead on a White House interpretation of the Supreme Court’s intent not to restrict wiretaps in “grave matters involving the defense of the nation,” the Bush administration apparently chose not to cite this to bolster their NSA program.) Afterwards, FBI Director J. Edgar Hoover was able to manipulate Roosevelt’s directive by redacting the restriction provisions to persuade subsequent presidents to re-authorize what Hoover purported to be Roosevelt’s broader directive.

The government’s use of wiretaps—with a court-issued warrant—was only made legal in 1968 when Congress passed the Omnibus Crime Control and Safe Streets Act. But the language in the law pertaining to foreign surveillance was unclear and, therefore, became a loophole through which administrations could establish warrantless national security wiretaps. This loophole, however, would soon be closed.

During the mid-1970s, the widespread abuses of power by the FBI, CIA, and NSA were revealed. Two eerily relevant examples for us today, moreover, are the illegal NSA programs codenamed MINARET and SHAMROCK. Through Operation MINARET the NSA eavesdropped on the international telephone calls of some 1,600 Americans; and in Operation SHAMROCK the NSA won the cooperation of American cable companies who, for 28 years, provided the secret agency with copies of Americans’ private messages. Finally, after it was learned that President Richard Nixon liberally interpreted the crime-control law’s language to establish wiretaps on war critics, Congress responded with the Foreign Intelligence Surveillance Act. The new law created a controversial secret court from which the government would have to obtain warrants to establish foreign intelligence and counter-intelligence wiretaps. No longer would the president have the sole power to eavesdrop on communications without any oversight or accountability. Obtaining a warrant from this court, however, was not problematic, especially after the advent of the Patriot Act which lessened the standard for foreign intelligence wiretap warrants to demonstrating only a “significant” link to terrorists or foreign countries.

Given the ease with which national security wiretaps are authorized—warrants can be issued retroactively up to three days after establishing a tap and the court has refused only a handful of warrants out of many thousands—why the Bush administration chose not to go through the FISA court is puzzling. Is the administration simply representative of the height of the imperial presidency by claiming for itself expansive and unchecked powers, or are they engaged in monitoring that which the FISA court would find beyond the law? Democratic government as we know it today—one that is accountable and based upon the rule of law rather than people—in the totality of human history has existed for but a infinitesimal moment. When we chip away our democratic values ostensibly to protect those same values, and make spurious claims of historical precedent, we only succeed in destroying that which this country best represents: a system of government that is supposed to protect our liberties through checks and balances. Losing that, indeed, is to concede victory to this country’s enemies.