Was Gonzales's Historical Defense of Eavesdropping Convincing?

News at Home

Mr. Charles, Ph.D., is Assistant Professor of History, Marietta College.

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.

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Patrick M. Ebbitt - 9/24/2006

Dear Mr. Heuisler,

Being totally sober throughout my lifetime may be hard for you to believe and is something that neither Mr. Bush nor his amicable sidekick 'Hiram Berdan' Cheney can rightly claim.

Let me simplify this issue so that even a Kool-Aid drinker such as you can comprehend, "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized."

Both you and the President would be well served to read and understand the 4th Amendment to the US Constitution.

The 4th Amendment is supported by the 1978 Foreign Intelligence Surveillance Act (FISA) not superseded by it. The constitutional standard for issuing a warrant for a particular search involves probable cause supported by an oath or affirmation. If NSA searches do not involve probable cause then they are denied a warrant.

Seeing that Mr. Bush, in his zeal to become a Unitary Executive, chose to forego FISA requirements means he is in violation of the law regardless of Mr. Gonzales weak defense.

The fact that we are spending extraordinary resources on an unconstitutional spying program that by definition is looking for people who are probably not terrorists speaks for itself. Mr. Bush is no longer interested in bringing Osama bin Laden to justice... if he ever was... stated, "the idea of focusing on one person is- really indicates to me people don't understand the scope of the mission. Terror is bigger than one person. And he's just – he's a person who's now been marginalized. His network, his host government has been destroyed. He's the ultimate parasite who found weakness, exploited it, and met his match. He is – as I mentioned in my speech, I do mention the fact that this is a fellow who is willing to commit youngsters to their death and he, himself, tries to hide – if, in fact, he's hiding at all. So I don't know where he is. You know, I just don't spend that much time on him to be honest with you."

No Mr. Bush doesn't spend much time on his former business associate Osama bin Laden whereabouts as he has more pressing enemies on which to spy upon such as Greenpeace, MoveOn, Vietnam Veterans Against The Iraq War and other nefarious entities.

You should also try to get your source name and story correct as it is Lyman Faris... with an 'L'... actually, Mohammad Rauf who pleaded guilty to IMMIGRATION FRAUD and was convicted as such but, not for plotting terror attacks against domestic target as you wrongly claim. But thanks to Mr. Bush's warrant-less spying this case is under appeal due to alleged illegal gathering of evidence.

Maybe the NSA should train their sites on someone like you for your idiotic blathering and Nazi like tendencies.

Patrick M. Ebbitt - 9/24/2006


If I could I'd throw you a life preserver because your sinking faster than the Administrations foreign policy... panic, misspellings, confusion...

Nothing sadder than watching an HNN poster drown... been there, done that, know how it feels...

Patrick M. Ebbitt - 9/24/2006


What do you do cut and paste the same, tired rhetorical rehash from your previously posted nonsense?

The Brooklyn Bridge... how many time are you going to ride that broken down horse... isn't it time to take that nag to the glue factory?

Freshen it up a bit and regale us as to how W. saved the Library/Liberty Tower in LA through his NSA wiretaps from those big/bad Islamofascist Sky Pilots of Death...

Patrick M. Ebbitt - 9/24/2006


Thanks for the grammar lesson. If the only defense you can muster in favor of Mr. Bush's illegal NSA eavesdropping and Mr. Lederer's premises is to point out errors in my punctuation then the two of you can be buried at sea together.

While Mr. Bush adds the bungled Spygate capers to his sack of woe our War on Terror slips further south. Here's a little bone for you to chew on tonight before you sleep...

"Our mission has failed because Iraqi animosities have proved uncontainable by an invading army of 130,000 Americans." - William F. Buckley Jr., National Review 2/24/2006

When the right looses Buckley; the right is lost.

We American's don't need to be wasting valuable time and resources on the current NSA claptrap. The efforts and energies expended would better serve turning around the War and getting back on a winning track. The overall incompetence of the White House is bogging us down.

If you don't believe this then save me some Kool-Aid as we'll both be guzzling.

Patrick M. Ebbitt - 9/24/2006

Dear Mr. Lederer,

You are correct. In future please try to do a better job with your source document. USA Today is always questionable and articles from 2003 a tad outdated. Why does the 'left' always end up doing the heavy lifting...

Here is the proof you are looking for;


However, that does not excuse you from your need to explain...

Why the Administrations actions are not in violation of the 4th Amendment?

Why the Administrations actions are not a violation of the 1978 FISA regulations?

How the Administration can justify the whole of it's actions based on one case (Faris) presented, by both you and Mr. Heiusler, in breach of said Constitution and Federal Law?

Why both the FBI and CIA report that the intercepts garnered are of limited value?

How the Administration actions are an effective countermeasure when anyone with limited knowledge of electronics can easily beat these intercepts?

Why the Administration actions have not returned greater asset value targets?

Why the Unitary Executive concept is an acceptable means of US governance?

By the way, your Grand Prize is a fabulous trip for (2) to either UAE or Great British...

Patrick M. Ebbitt - 9/24/2006

[PDF] United States v. Iyman Faris

Patrick M. Ebbitt - 9/24/2006


You write, "what breed of dog would work best for flushing coveys of pigs?"

Well, the Administration could start by being honest, forthright and up front with the American people. Then hopefully, take the lead as a true uniter in Congress. This will be a monumental stretch and require a full 180' from past practice but, is the much needed remedy to begin to peel away the numerous layers of ill policy/ folly the Bushies have wrought upon themselves and subsequently, our great nation.

As we thankfully, enter the twilight of the Bush Administration's tenure will his reign be remembered as a misbegotten and forgettable Presidency on par with Buchanan, Taft, Harding Ford, Carter and GHW Bush or as an exceptional era such as the Lincoln Era, FD Roosevelt Era, Truman Era, Eisenhower Era, Reagan Era or Clinton Era? Now is the time for Mr. Bush to establish his legacy.

The past six years have provided the unfortunate full monte of gates... Election Gate 2000, Tax Cut Gate, Enron Gate, Kyoto Gate, 911 Gate, bin Laden Gate, TSA Gate, No Child Left Behind Gate, WMD Gate, Plamegate, Downing Street Memo Gate, Massive Deficit Gate, Guantanamo Gate, Abu Ghraib Gate, Foreign Rendition Gate, Halliburton Gate, Shock & Awe Gate, Dead/Wounded Soldier Gate, Terror Alert Gate, Tillman Gate, Afghan Opium Production Gate, Medicare Prescription Drug Gate, National Energy Policy Gate, Alaska Refuge Gate including Tongass Forest Gate, Mad Cow Beef Gate, Election Gate 2004, Unsecured Borders Gate, Myriad of Appointed Officials Fired/Resign Gate, Schiavo Gate, Gay Marriage Gate, Lack of Armor Gate, Katrina Gate, ID Creationist Gate, Bad Scientists Gate, Job Loss/Outsourcing Gate, Sago Mine Gate, Libby Gate, Abramoff Gate, Frist Gate, Delay Gate, Last Throes Gate, Oil Price Gouge Gate, Supreme Court Nominee Gate, Iraq Election Gate, CS King Funeral Gate, Quail Hunt Gate, Spygate, Hamas Gate, UAE Port Gate and finally, Iraq Civil War Gate to name a few. Add your own if any were forgotten.

Coming attractions may include Iran War Gate coupled with Syria War Gate and Domestic Detention Center Gate. How many more gates can reasonable people endure?

For those of you on the right who have given us/ defended these gifts from Washington all that can be said is thanks for nothing. If the right would be pit bulls against the covey of pigs flushed upon the American people by the Administration then maybe, just maybe we can salvage our ship of state.

Patrick M. Ebbitt - 9/24/2006

Dear Mr. Lederer,

In cases of reasonable suspicion, routine search and seizure without warrant is understandable and common in everyday law enforcement and even then it is within strict limitations but, you need to provide details to your point, "I know of no President who has not taken action under that presumption." Events/Names/Dates/Outcomes... you know the routine...

My point on Faris is that it is such a weak case... alleged attack on a non-value/low yield target by a mentally disturbed immigrant now becomes your basis for radical/sweeping encroachment upon citizen rights and grounds for usurping the US Constitution. How is this justifiable and not overkill?

Reading USC Article II Section 1., 2. and 3. no where does it meet your criteria in support of a Unitary Executive. Not even Section 2 (1) is explicit in this regard. Please take the time to quote the basis of your opinion.

When this war is over as it will be someday, the Republican Party, in particular, is going to pay a heavy price at the polls for their hard handed actions today. GWB has slipped to a 40% approval rating with a rise to 55% against the War. This is no way to lead a nation in crisis.

Patrick M. Ebbitt - 9/24/2006

In 1952, during the height of the Korean War, President Harry S. Truman stated bluntly, "The president has the power to keep the country from going to hell!" when asked what gave him the legal authority to seize the nation's steel mills, in order to avert a national strike of 600,000 steelworkers. Truman was summarily slapped down.

Mr. Bush, who through shear arrogance, needlessly placed himself in this most questionable of positions would have been wise to heed history to understand that imperial and presidency are in no way simpatico.

The US Constitution is inviolate as understood by President Gerald R. Ford who stated, "Our constitution works. Our great republic is a government of laws, not of men." Mr. Bush should have followed FISA requirements, avoided this extraneous fluff and saved his much needed energies to direct full concentration and efforts to winning the War on Terror.

Michael Barnes Thomin - 2/26/2006


John H. Lederer - 2/26/2006

"We American's don't need to be wasting valuable time and resources on the current NSA claptrap. The efforts and energies expended would better serve turning around the War and getting back on a winning track."

We are in agreement. So...what breed of dog would work best for flushing coveys of pigs?

Bill Heuisler - 2/25/2006

Mr. Ebbitt,
An apostrophe is used to indicate the omission of one or more letters in a word, and also to indicate the possessive case. Mr. Lederer almost certainly would more appreciate your gratuitous English critique were it written competently.

You are becomes a contraction with an apostrophe (you're). Possessive of administration needs another apostrophe (administration's).

Mr. Lederer is being kind, judicious and gentlemanly. His arguments are acute and deserve polite response rather than lame corrections from a dialectically-challenged spectator.

Don't thank me. Just reread your last post, make corrections and resolve to do better in the future.
Bill Heuisler

Frank Halsey - 2/25/2006

Referring to Dr. Douglas Charles, Thomas writes (#80196): "Fortunately, these hippies are aging, and so is Soros." As usual, the tone and level of Thomas’ pathetic posts with his personal prejudices, always quickly criticizes from a position of ignorance. It so happens that Dr. Charles, who wrote this article, is a young man who received his BA in 1995, hardly an aging hippie.


John H. Lederer - 2/24/2006

Was my meaning not clear? I presented these as possible arguments, not as my opinion of what the correct result ought be.

My main thrust in most of these discussions had been to assert that there is little point in assuming that the logical result of the NSA/FISA/Constitution controversy is obvious. It is not.

That's why in my early comment "Assuming the conclusion" I took exception to the author of the article assuming that it was illegal and unconstitutional, and then bewailing how doomed the Republic is.

In my own opinion, Congress has a slighty better argument in regard to the FISA statutory issue, the President has a better argument in regard to both Constituional questions. As a practical matter:

1. Congress will not go on recrod forbidding the President from doing what he is doing. It would threaten their re-election.

2. If presented to it, the Suporeme Court wiill duck the Constituional issue which means that it is likely that the Presidnet will prevail on the stautory interpretation question, even thou8gh his argument is, in my opinion, a bit weaker there.

3. The most desirable outcome, in my opinion, would be a FISA statute that says "if it is truly foreign intelligence no warrant is needed, and "reasonable" is the only restraint -- but we will establish a non-judicial post-facto review board to make sure that it is truly foreign intelligence and not outrageous".

Frank Halsey - 2/24/2006

"I present therse as arguments, not as my personal opinion." Lederer

No. Only as his personal interpretation or something he's picked up elsewhere. If he is a lawyer, he should understand how the wording and the logic in the DOJ white paper leaves an opening for another interpretation.

Is it ideological orientation? or just plain misunderstanding? Who knows and who cares.

Frank Halsey - 2/23/2006

"Congress can easily assert its power by a simple majority in the annual budget. Refuse funding."

I wish I had your confidence.

John H. Lederer - 2/23/2006

I present therse as arguments, not as my personal opinion.

Why the Administrations actions are not in violation of the 4th Amendment?
The 4th Amendment establishes two requirements (1) that searches be reasonable and (2) that warrants issue only on probable cause. The two are not coterminous. We have throughout our history recognized that some searches are reasonable without requirement of a warrant. Examples include at arrest, at the border, and , most pertinently, in foreign intelligence gathering. I know of no President who has not taken action under that presumption.

Up until quite recently electronic surveiillance was not a search of one's " persons, houses, papers, and effects" until the Supreme Court engaged in a little expansion of what they thought ought be protected. (I concur with the need but would rather have seen it more securely and properly done by amendment).

Why the Administrations actions are not a violation of the 1978 FISA regulations?

We don't know precisely how the administration conducts its surveillance.Assuming that the details of the surveillance fall within FISA's purview, the argument is that FISA declares as not needing a warrant surveillance authorized by any other statute. AUMF is put forward as such a statute. It is a colorable argument.

How the Administration can justify the whole of it's actions based on one case (Faris) presented, by both you and Mr. Heiusler, in breach of said Constitution and Federal Law?

You are assuming the answer to the first two questions when you assert that the Faris intercept was in breach of the Consitutuion and FISA. Faris is the only case we know of. We don't know how many or how serious others have been.

Why both the FBI and CIA report that the intercepts garnered are of limited value?
They don't. Some unnamed sources have benn reported in the press as representing that. I doubt we ought put much credence in them.

How the Administration actions are an effective countermeasure when anyone with limited knowledge of electronics can easily beat these intercepts?
Short answer -- Al Qaeda had not used sophisticated codes, I suspect they will now with a tip of their hat to the NY Times.

Longer answer -- you seem very sure that no one has solved the problem of predicting primes. A solution to that math problem, or even an elegant algorithm that would more efficiently allow a computer solution by force, would result in easy decryption of most codes in wide use.

Why the Administration actions have not returned greater asset value targets?
We don't know what targets have been revealed.

Why the Unitary Executive concept is an acceptable means of US governance?
Because the Constitution states it. Read the delegation of executive power.


By the way, your Grand Prize is a fabulous trip for (2) to either UAE or Great British...
Ahh. I have always wanted to see really industrial strength air conditioning.

John H. Lederer - 2/22/2006

Congress can easily assert its power by a simple majority in the annual budget. Refuse funding.

I think you misread my first comment under this heading. I was not arguing for or against the NSA program, but simply asserting that the author's article failed to come to grips with any of the arguments , but merely asserted illegality.

Frank Halsey - 2/22/2006

"Having assumed the conclusion, the author examines the evidence reiterates his conclusion and condemns the administration for conducting an illegal program:" Lots of assertions here but nothing follows by Mr. Lederer
that I would reasonably call an argument, even though it looks like one. It solves nothing. Unfortunately, the NSA wiretapping issue is not as cut and dried and 1-2-3 as Mr. L makes it out to be in his criticism of Mr. Charles’ article, correct or not.

If you were to take a close look at the DOJ white paper (http://files.findlaw.com/news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf) it would seem to make its primary arguments well, that: (1) the President's Commander-in-Chief power (Article II) provides an independent basis for supporting the NSA's activities; (2) even if that didn't, Congress' Authorization for Use of Military force adequately supports the NSA's activities because warrantless surveillance of the enemy is part and parcel with fighting wars; (3) FISA, read properly, doesn't forbid these activities; (4) but even if it did, the AUMF supersedes FISA; and (5) in case one has any doubt that that's the right way to read the AUMF and FISA, one should because to do otherwise would invite a constitutional conflict between FISA and Article II.

However, there is too heavy a reliance on point 5. The DOJ only appears to be on solid ground in arguing that the AUMF and FISA should be read in a way to avoid posing the constitutional problem.

This interpretation assumes an ability on the part of Congress to undo what it perceives to be an erroneous interpretation by the Court.

If Congress wants to force a constitutional question avoided by the Court when the latter relies on a canon of statutory construction, it can do so by reenacting or amending the statute in question. The same alignment of forces that enacts the original law is all that is necessary to reenact or amend a simple majority of each House, plus the President.

But this is NOT true in this particular instance of interpreting the AUMF and FISA if the constitutional issue is the scope of Article II and we interpret the AUMF and FISA to avoid the constitutional question, that has the effect of maximizing the Executive Branch's power at the expense of Congress, which tried to limit the President's power through FISA.

Well, maybe can Congress reenact FISA and/or the AUMF to make clear whether it intended to permit the NSA its surveillance without a warrant? It can. But the catch is that if it made clear that it did NOT intend to permit the surveillance, we would expect the President to veto that new bill. Sure Congress could override the veto, but it would take 2/3 of each House, not a simple majority. So even if a simple majority of each House had not in fact intended the AUMF to supersede FISA, that simple majority would be unable to effectuate its intent, because it would now take a supermajority to override a veto.

At one level I despise the warrentless surveillance because it leads to other things, things that are just plain wrong, despite the consequences of our geopolitical adventure and the "war" we are in, and at another level I have to sit on the fence until we know Congress intended the President to have such power.

John H. Lederer - 2/22/2006

"The question: if Bush had not notified those members of Congress, do you believe his actions would still be constitutional?"

If his actions were still as represented in this program, yes. I would, however, be far more suspicious that his actions were not as claimed.

Stated differently:
The constitutionality does not depend on informing Congress, but the fact that he informed Congress makes it more likely that what he actually did was constitutional.

I don't know that we have heard all (and possibly should not at this point), but Gonzales testimony led me to suspect that there probably are other programs.

John H. Lederer - 2/22/2006

The author reiterated a canard appearing in many left wing publications:

"You should also try to get your source name and story correct as it is Lyman Faris... with an 'L'... actually, Mohammad Rauf who pleaded guilty to IMMIGRATION FRAUD and was convicted as such but, not for plotting terror attacks against domestic target as you wrongly claim."

"Faris pleaded guilty May 1 to providing material support to terrorists and conspiracy to provide support, according to documents unsealed Thursday in U.S. District Court in Alexandria, Va."

Oscar Chamberlain - 2/21/2006

This may just be one of those points where we have to agree to disagree. I feel like I have made my points clearly. I think you have done so, too. However, I can't resist one final comment and one final question.

The comment: I don't necessarily assume that Bush is using this power for anything under than what he considers true national security issues. I do fear that it might grow into something worse without oversight, if not under him, then under a later president. (We could be in this War on Terror" a long time.)

The question: if Bush had not notified those members of Congress, do you believe his actions would still be constitutional?

John H. Lederer - 2/21/2006

It is not a "scattering" -- it is a logical complete set of people based on their positions. That matters because it removes the possibility of picking and choosing whom to reveal it to.

It is not one time. It included followup briefings (though these were disrupted to some degree by personnel changes -- a total of 13 or 14 people were briefed, for the nine positions).

They included people that could be expected to be able to raise a fuss were there a serious problem. They were briefed that it would include conversations from/to Al Qaeda suspects and possible American citizens.

I do agree that a formalized oversight board of some kind with regular oversight would be better.

But I do think what was done in the way of informing makes it clear that this was not a program secretly embarked for illegitimate puposes to the exclusion of the other branches of government or the opposition party. To my mind that means, regardless of the legality details, the program meets a "sniff test" of likely reasonable.

The program is, I think, very likely constitutional. To the degree it is illegal it is because of a conflict with the procedures of FISA and not because of a fundamental contitutional problem.

Oscar Chamberlain - 2/21/2006

Notifying a scattering of representatives is not the same thing as having someone in the loop who knows who is being tapped repeatedly and why.

The former allows us to return to those thrilling days of LBJ, Nixon, and others tapping domestic opponents. The latter would, at minimum, make such abuses harder.

John H. Lederer - 2/21/2006

You said:
"In fact one of the things that angers me so deeply about Bush's desire for absolute authority and secrecy.."

Let's see: briefed the Senate Majority and Minority leaders, the House Speaker and the House Minority Leader and the Chairs and ranking minority members of both Intelligence Committees and the and the Chief Judge of FISA starting in 2001.

To me that seems in the area of a reasonable compromise between exposing something that is of great use to our enemy and refusing to keep the other branches in the loop. Not the process I might design, but certainly a reasonable approach.

Do you really regard that as political secrecy?

Oscar Chamberlain - 2/21/2006

1. I'm well aware of the distinction between enumerated powers and a broad grant of power. However, that broad grant is nowhere near absolute. As I said in a post that disappeared in the last server failure, if the Framers had wanted a dictator in time of war, they had Classical precedents to draw on.
They didn't. Thus they assumed that the system of checks and balances would remain functioning.

2. You are certainly correct that the Courts don't like to rule in such cases. But the inability of the courts to act effectively does not make his actions constitutional.

3. In fact one of the things that angers me so deeply about Bush's desire for absolute authority and secrecy is not that he has support for it. He doesn't. It is that he knows that if push comes to shove, there is nothing short of impeachment that can stop him.

This has nothing to do with national security. He has worked to remove the workings of the presidency from the public eye--and our system of checks and balances-- well before 9/11. That's one reason that not even all the Republicans support him on this.

On the issue at hand, you know and I know that he could have worked out something within the system of checks and balances that gave him all the flexibility he needs in return for a bit of oversight.

He's fighting this because he does not want either Congress or the Courts to know what he is doing. (And vague, incomplete comments to a few members of Congress are not nearly good enough.)

You may trust him enough to live with this comfortably. I don't. I would like to believe that I would not trust any president with such power.

John H. Lederer - 2/21/2006

You should include in your relevant constitutional provisions a fundamental difference in executive and legislative power:


"All legislative powers herein granted shall be vested in a Congress of the United States.."
"The executive power shall be vested in a President of the United States of America...."

The two fundamental grants of power are different. One requires itemization of the powers within the constitutional text. The other does not. Thus listing the respective itemizations is not necessarily illuminating.

As a historian you might also focus on the phrase:

"To make rules for the government and regulation of the land and naval forces;"

which had a somewhat narrower meaning than what casual reading in today's vernacular would suggest -- the original meaning might confine it more to the "structure" and "discipline" than to the "direction" of the forces."Government" and "regulation" had a different meaning in regard to the military in the 18th century than the general political meaning they have today. The point is a small and subtle one and has led to the judicial recognition that Congress cannot direct, for instance, a military campaign.

Exactly where the line falls between Congress' military power and the President's has been a problem throughout our history, and has resulted in a small but significant body of case law. One notable factor of the case law is the number of times the courts have refused to make a legal determination until after the crisis is past.

I suspect that were the NSA program's legality ever judicially considered, the desire to avoid the constitutional questions would lead to the determination that the AUMF is a "authorization by statute" under FISA.

But I certainly would agree that we do not have three equal branches in general. Congress is the dominant one.

Bill Heuisler - 2/20/2006

Mr. Ebbitt,
As usual, your firm grasp on issues is absolutely inspiring. Keep it up. Add to your already intoxicating repertoire...and to our perplexity.
Bill Heuisler

Andrew D. Todd - 2/20/2006

I think John Lederer is entirely missing the point. The NSA can only tap telephones because there is not mass popular resistance. If even a small fraction of the population choses to respond by turning on their encryption, then the NSA will drown in static. The resistors can use technical methods to obscure not only the content of their messages, but also where the messages are going. I have discussed this matter previously, and I am amused to find that some of my conjectures about the implication of telephone company management proved to be correct:


It did not matter whether King George had the right to arrest John Hancock and Samuel Adams in Lexington on the night of 18/19 April, 1775, nor whether he had the right to seize the stores of powder and shot at Concord. What did matter was that there were more Minutemen in Massachusetts than there were Redcoats in North America, and the Minutemen did not think the King had these rights. And we all know how that turned out.

Here is something which might interest you:


I realize this is a Wiki article, but Wiki is generally reliable as far as technological information goes, and it seems reasonably in line with what I have read more extensively elsewhere.

That said, the administration's position is detached from reality . If the administration does not succeed in persuading the most extreme constitutional opposition (say, followers of Ralph Nader) not to turn on their scramblers, the administration has lost. These people will form themselves into a kind of "underground railroad" for anyone who wants to communicate secretly.

Here is something else that is interesting. The trade press went around and, in essence demanded public affirmations by various telecommunications companies that they had not unlawfully collaborated with the NSA. Failure to make such an affirmation was taken as a confession of guilt. Faced with a probable boycott, quite a lot of firms gave the required affirmation.


This sort of thing, in practice, takes precedence over legalities. Giving the wrong answer will cost a company many millions of dollars. There is no legal right to enjoy business patronage.


Now, in the matter of undersea cables which are not common carrier:

I am not a lawyer, of course, but my understanding is that submarine cable operators now sell "indefeasible rights of use" on channels or amounts of bandwidth, which, depending on the circumstances, would be something between a leasehold and a condominium, correct? I take it the following case gives an accurate picture of the legal situation?


Of course, it is open to dispute whether unauthorized tapping without the positive defense of a warrant is compatible with assigning "indefeasible rights," or whether it might be viewed as sabotage. However, the legalities do not matter very much. People are getting accustomed to playing hardball at the wholesale telecommunications level. Take the example of the Level 3 -- Cogent dispute:


This was not a case settled by law. Rather, it was, as much as anything , a case settled by force of arms in a kind of private war, mutually destructive to both parties. A firm which waited for legal remedies would go bankrupt long before it got any legal relief. The ultimate customer is very unhappy about as much as a day's disruption of service. In this case, Level 3, having contracted to provide internet ISP services, interfered with traffic on the basis of its ultimate address, with a view to negotiating better terms with the ultimate addressee. The result was that Level 3's customers were forced to frantically set up alternative routes around Level 3. It probably doesn't take a whole lot of provocation for a firm to simply decide that its bandwidth supplier has no "need-to-know" for the telecommunications traffic being moved. One doesn't want the vendor to know anything which he could use for intentional sabotage, conducted with a view to diverting business. Once relations deteriorate to this point, the wholesale customer drops in cipher machines, which can be very cheap, and set up private "virtual networks," simply to exclude this kind of tampering. The same thing is likely to happen with subsea cables. The cable operator will be perpetually under suspicion of sabotaging his customers, who will take defensive measures. Uncertainty about wiretapping will simply accelerate a process which was already incipient.

Bill Heuisler - 2/20/2006

You assert the media revealed an illegal act to the public. First, the act is not illegal because you say so, and the act was revealed to public Representatives in 2001.

NSA moniters al-Qaeda international communications with one end in the US. Are you aware court decisions (mentioned elsewhere ad nauseum) acknowledge or let stand executive authority to wage war, and authority to protect national security through electronic surveillance?

Most important, Professor, NSA surveillance did not take place in conspiratorial darkness. The Bush administration informed FISA judges, the AG and the leaders of oversight committees in Congress and in the Senate - including as broad a group in the oversight as was possible for wartime secrecy. The administration complied with the law while getting information as quickly as possible to prevent another terrorist attack.

The program has paid off. In just one instance (among many I'm sure) NSA information kept al-Qaeda from destroying the Brooklyn Bridge in 2003. Iyman Faris pled guilty and is now in a prison cell. The four years of attack-free life we've enjoyed since 9/11 is no accident. How many American lives have been saved?

Professor, does our Constitution allow us to defend ourselves against asymmetrical warfare? Or does it require the sacrifice of thousands (millions?) of Americans because we don't like some of our international communications being monitored?

If sacrifice is your preference, please say so, rather than inferring illegality and secrecy without facts.
Bill Heuisler

John H. Lederer - 2/20/2006

Surely some sort of commission -- say two selected by Intelligence Committtee and one by President, no one currently in office, fixed long terms could be satisfactory? Be nice to establish it as a non-partisan position for someone retired. What are Sam Nunn and Warren Rudman doing these days?

I think it would be enough to keep everyone on the straight and narrow if they knew someone not beholding would be auditing their work.

Oscar Chamberlain - 2/20/2006

Here are the Congressional powers concerning war and conflict;

10. To define and punish piracies and felonies committed on the high seas, and offences against the law of nations:
11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water:
12. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years:
13. To provide and maintain a navy:
14. To make rules for the government and regulation of the land and naval forces:
15. To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions:
16. To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress:

Here is the President’s war power from Article II.

1. The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States;

Article IV, section 4, involves both branches:

The United States shall guarantee to every state in this union, a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence.

If you look at these provisions together, they are really pretty clear. Congress declares war and provides the ground rules for waging that war. Within those ground rules the president administers the war, primarily through his power as commander-in-chief. The president may act in advance of Congress, when Congress is not in session. Most people, myself included, would pragmatically expand the last point to allow for quick action until Congress can be consulted.

In short, there is really no basis for saying that FISA is unconstitutional. None whatsoever.
If anyone disagrees, please point it out in these provisions.

Oscar Chamberlain - 2/20/2006

I have no problem with amending FISA. Where we may differ is that I think it is crucial to have someone not beholden to the president--that is not a member of either the excutive branch or the military-- who, at a bare minimum, knows what is being done and has the power to alert people when the power is abused.

Frederick Thomas - 2/20/2006

Further to Mr. Lederer's incisive comments, Prof. Charles starts with presumptions backed up by assertions, and quickly comes to a preordained conclusion.

The Professor, not having even begun his analysis of the legal merits of the administration's position, nonetheless leads off boldly with "As a companion to its questionable legal claims..." Why questionable? He does not bother to say, but wants us to believe based upon faith.

That kind of lefty-lockstep thought, more appropriate to Mao's China and Stalin's Russia than to this country, it what one must expect from former flower children who still inhabit academe. If I had such as this in my class, I'd flunk him repeatedly until he came up with an original thought, one not generated by George Soros.

Fortunately, these hippies are aging, and so is Soros.

John H. Lederer - 2/20/2006

Sure that would be workable-- if one amended FISA.

The problem with the 72 hour provision is that the Attorney General is statutorily reuired to satisfy himself that the FISA court will approve the application when it is submitted. In practice that means that there has to be a "full drill" presentation to the AG. That takes time and lawyers.
Hayden stated that the need for speed was such that shift supervisors were making the actual decisions.

That need for speed seems pretty obvious. Imagine capturing a laptop or cell phone with telephone numbers. The info is only good for the length of time it takes someone to tell Al Qaeda HQ "Abdul is dead and the infidels have his computer." Or imagine a warranted interception of a call from Al Qaeda in Iraq to Germany that says "Tell Khalil that the sun should set tomorrow in San Francisco". Wouldn't you want to intercept the next call the Al Qaeda operative in Germany makes particularly if it is to a San Francisco number? He may dial it in a few seconds.

It seems to me that the reasonable approach is to use a third party to determine that the use of the surveillance is in fact legitimate foreign intelligence (including domestic calls) and not political shenanigans. That supervision can probably be effective if excercised roughly contemporaneuosly or shortly after the interception.

I will say that I am very uncomfortable with the use of the courts for that. Warrant approval in general is an exception to a lot of sound judicial doctrines like teh requirment of a "case or controversy" and not giving advisory opinions. It has a strong whiff, to me, of the courts acting as an unaccountable executive. Perhaps a commission nominated by both parties or something similar might be better.

Finally as a parenthetical, regardless of whether you are for or against surveillance, FISA needs to be amended. For instance, in 1978 submarine cables carried only a portion of intercointinetal communications and were operated ny common carriers. Today almost all intercontinetal communications go by fiber optic cable, and almost all modern cables are non-common carrier. Yet FISA makes common carrier status a critical determinant of whether a warrant is required or not. Are a few lines of software code a "device"? That is critical to a legal determination under FISA because FISA assumed a microphone or physical junction box being used.

Oscar Chamberlain - 2/20/2006

"Regardless of your opinion of their credibility, the explanation seems to make sense."

I find it distinctly incredible that there is no possibility of having another branch in the loop in a manner that still allows a sufficiently flexible and response.
If the administration had been willing to pursue, in a timely manner, implementation of a clearly constitutional mechanism for independent oversite, it is entirely possible that this program would have not been made public.

John H. Lederer - 2/20/2006

The author's first sentence is:

"...the New York Times revealed to the public that President George W. Bush had authorized an illegal National Security Agency program."

Having assumed the conclusion, the author examines the evidence reiterates his conclusion and condemns the administration for conducting an illegal program:

"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?"

Any reasonable approach to the question would have to consider:

1. Does the Constitution prohibit foreign intelligence gathering without a warrant. The likely conclusion to this is "no". The Suporeme Court explicitly held in 1928 that wiretaps were not prohibited by the 4th Amendment and did not require a warrant, a decision reversed in 1967 on different logic in a decision that specifically excluded foreign intelligence gathering from its reach.

2. Does FISA require that a warrant be obtained? This seems an open question. Assuming that FISA applies (we don't know the details of the program and FISA is a very fact specific statutory scheme-- for instance one needs to know details such as whether the signals were carried by a common carrier and the point of interception), this is largely a question of whether the AUMF consitutes a statute, under FISA's terms, that authorizes such surveillance.

3. Assuming that 2 is answered affirmatively, one then has to consider whether this is an unconsitutional congressional intrusion on executive power.

The analysis, of course, can be much simplified if one does as the author and assumes the conclusion.

John H. Lederer - 2/20/2006

"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."

Both Gonzales and Gen Hayden have explained the problem with the emergency authority, Hayden more than once.

Why are you puzzled? Do you not believe their explanation of the practical problem? Regardless of your opinion of their credibility, the explanation seems to make sense.

David M. Zucker - 2/20/2006

Prior to and/or during WWII Navy intelligence was intercepting transatlantic messages. The operation, in downtown Manhattan (a hardship AO) was the site for this operation. Also, the author minimized the problems with the FISA warrents. that have been detailed by previous administrations. At the very least, the law has to be upated for this age of cellphones with replaceable chips and the ever changing internet.

John Chapman - 2/20/2006

President Clinton in 1993 raised domestic spying to an art: Insight Magazine reported in a series of articles in 1997 that "President Clinton ordered the NSA and FBI to mount a massive surveillance operation at the 1993 Asian/Pacific Economic Conference (APEC) hosted in Seattle. One intelligence source for the story related that over 300 hotel rooms had been bugged for the event, which was designed to obtain information regarding oil and hydro-electric deals pending in Vietnam that were passed on to high level Democratic Party contributors competing for the contracts."( Timothy W. Maier, Timothy W. Maier, "Did Clinton Bug Enclave Conclave for Cash" ,Insight, September 15, 1997). Clinton was a sneak too.

Clinton’s escapades are not exactly a precedent nor an excuse to abuse and use the Constitution to spy on private citizens today but spying on foreign governments has been going on forever, and in the US, ever since Truman created the NSA in 1952? it’s probably been business-as-usual, domestically, ever since. Because of a chain of historical events, the Bush administration came out of the closet with it. ECHELON and other systems (used to intercept ordinary e-mail, fax, telefax and telephone communications) today have turned inwardly to poke into domestic surveillance activities for what I believe is for no probable cause all at the expense of violating the First, Fourth and Fifth Amendments. We’ve probably had a Top Secret surveillance system operating for a long time under the radar. The fault lies not only with them but all the preceding Democrat and Republican administrations.

Spying on American citizens is unconstitutional no matter what reasons this administration is giving. All this will only lead to more surveillance and monitoring and will serve to increase the use of encryption, at first by people with something to hide, and then by others - a snowballing effect - and various government agencies will themselves use encryption to protect their files and their privacy. We probably can’t conceive of what will happen if this goes on in the future person-tracking-credentials-based society. But the trends have already begun; citizen-unit surveillance systems, video cameras on street corners, cameras in stores, in airports, in other public places, tracking of purchases with credit cards, driver's licenses, monitoring of computer emissions, interception of the Net, compilation of dossier entries based on public postings, submission to being "scanned" so you can be on your way somewhere, etc.,etc.

With an annual budget of $26.7 billion US intelligence services are the best equipped in the world.

No, Gonzales is one hell of an example of an immigrant shyster who took advantage of being an American and certainly doesn’t convince me. I think it is a claim for more expansive and unchecked powers under the guise of national security. But since they’ve always spied on us, it represents something much more sinister. Gonzales also represents an administration that has made too many mistakes (15 major ones) in the last six years to inspire any confidence in their thinly veiled claims.