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2005-12-19

An Impeachable Offense? Bush Admits Authorizing NSA to Eavesdrop on Americans Without Court Approval

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President Bush has admitted he secretly ordered the National Security Agency to eavesdrop on Americans without ever seeking court approval. Famed constitutional attorney Martin Garbus and former intelligence officer Christopher Pyle both say it is an impeachable offense. We also speak with investigative journalist James Bamford about the history of the NSA. Plus, The New York Times exposed the story, but why did they hold it for more than a year? [includes rush transcript]

President Bush has admitted he secretly ordered the National Security Agency to eavesdrop on Americans without ever seeking constitutionally-required court approved warrants. Under the program — authorized in the weeks following the 9/11 attacks — the agency has monitored the international phone calls and e-mails of hundreds — and possibly thousands — of people inside the country. The New York Times broke the story Friday. Hours later, Bush was interviewed by PBS’ Jim Lehrer.

Bush later reiterated he would not comment on the program because doing so would: "compromise our ability to protect the people." But less than twenty-hours later, after a storm of public criticism, he reversed his position. This is President Bush, in his weekly radio address Saturday.

The disclosure has led to bi-partisan calls for a congressional investigation. In response, administration officials pointed out both Democratic and Republican congressional leaders had been briefed on the program. But former Democratic Senator Bob Graham, who attended the briefings as chair of the Senate Intelligence Committee, told the Washington Post he was never informed of the two key issues to arise from the disclosure. Graham says he was never told the government was eavesdropping on U.S. citizens and foreign nationals in the country, nor was he told it was bypassing the special courts imposed by the Foreign Intelligence Surveillance Act, or FISA.

Under FISA, the government can obtain warrants directly from a special court that requires almost no evidence or probable cause. Passed by Congress in late 1970s, FISA describes it itself and the criminal wiretap statutes as "the exclusive means by which electronic surveillance . . . may be conducted."

Several analysts have questioned the administration’s decision to not seek court-approved warrants when FISA courts have almost never rejected them. According to the Electronic Privacy Information Center, FISA courts have rejected only FOUR of over 15,000 warrant requests made since 1979. That number includes over 4,000 warrant requests since the 9/11 attacks.

The Washington Post notes the revelation marks the third time in as many months the Bush administration has been forced to defend a departure from previous restraints on domestic surveillance. Most recently, NBC News reported last week the Pentagon has been conducting domestic intelligence on peaceful anti-war protesters and others.

But the revelation also marks the second time in as many months one of the country’s leading newspapers has withheld information at the request of the Bush administration. In a November piece on the existence of CIA-run, Soviet-era prisons in Eastern Europe, the Washington Post complied with a White House request to withhold information administration officials said could be harmful to national security. In its report Friday, the New York Times revealed it had not only withheld information, but had in fact delayed publishing the story — also at the government’s request–for at least one year.

  • Martin Garbus, a partner in the law firm of Davis & Gilbert LLP. Time Magazine calls him "one of the best trial lawyers in the country," while the National Law Journal has named him one of the country’s top ten litigators.
  • James Bamford, investigative journalist and author of several books including the first book ever written about the National Security Agency called "The Puzzle Palace : Inside America’s Most Secret Intelligence Organization." He is also author of "Body of Secrets: Anatomy of the Ultra-Secret National Security Agency"; and most recently, "A Pretext for War: 9/11, Iraq, and the Abuse of America’s Intelligence Agencies."
  • Christopher Pyle, Professor of Politics at Mt. Holyoke. In 1970 Pyle disclosed the military’s surveillance of civilian politics and, as a consultant to three Congressional committees, worked to end it.

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: The President initially refused to answer any questions about the secret program, but on Saturday he spoke openly about it and defended the practice.

PRESIDENT GEORGE W. BUSH: We do not discuss ongoing intelligence operations to protect the country. And the reason why is that there’s an enemy that lurks that would like to know exactly what we’re trying to do to stop them. I will make this point, that whatever I do to protect the American people — and I have an obligation to do so — that we will uphold the law, and decisions made are made understanding we have an obligation to protect the civil liberties of the American people.

JIM LEHRER: So, if, in fact, these things did occur, they were done legally and properly.

PRESIDENT GEORGE W. BUSH: See, you’re trying to get me to talk about a program that’s important not to talk about, and the reason why is that we’re at war with an enemy that still wants to attack. I — after 9/11, I told the American people I would do everything in my power to protect the country, within the law. And that’s exactly how I conduct my presidency.

AMY GOODMAN: President Bush admitting on Saturday that he secretly had ordered the National Security Agency to eavesdrop. The disclosure has — he later reiterated he would not comment on the program. Doing so would, quote, "compromise our ability to protect the people," but less than 24 hours later, after a storm of public criticism, he reversed his position.

The disclosure has led to a bipartisan call for a congressional investigation. In response, administration officials pointed out both Democratic and Republican congressional leaders have been briefed on the program, but former Democratic Senator Bob Graham, who attended the briefings as chair of the Senate Intelligence Committee, told the Washington Post he was never informed of the two key issues to arise from the disclosure. Graham says he was never told the government was eavesdropping on U.S. citizens and foreign nationals in the country, nor was he told it was bypassing the special courts imposed by the Foreign Intelligence Surveillance Act, or FISA.

Under FISA, the government can obtain warrants directly from a special court that requires almost no evidence or probable cause. Passed by Congress in the 1970s, FISA describes itself and the criminal wiretap statute as "the exclusive means by which electronic surveillance…may be conducted."

Several analysts have questioned the administration’s decision to not seek court-approved warrants when FISA courts have almost never rejected them. According to the Electronic Privacy Information Center, FISA courts have rejected only four of over 15,000 warrant requests made since 1979. That number includes over 4,000 warrant requests since the 9/11 attacks.

The Washington Post notes the revelation marks the third time in as many months the Bush administration has been forced to defend a departure from previous restraints on domestic surveillance. Most recently, NBC News reported last week, the Pentagon has been conducting domestic intelligence on peaceful anti-war protesters and others.

But the revelation also marks the second time in as many months, one of the country’s leading newspapers has withheld information at the request of the Bush administration. In a November piece on the existence of C.I.A.-run Soviet-era prisons in Eastern Europe, the Washington Post complied with a White House request to withhold information administration officials said could be harmful to national security. In its report Friday, The New York Times revealed it had not only withheld information, but had in fact delayed publishing the story also at the government’s request for more than a year.

To discuss this explosive story, we’re joined by Martin Garbus, partner in the law firm, Davis & Gilbert. Time magazine calls him one of the best trial lawyers in the country, while the National Law Journal has named him one of the country’s top ten litigators. We’re also joined in our D.C. studio by James Bamford. He is author of several books, including the first book ever written about the National Security Agency called The Puzzle Palace: Inside America’s Most Secret Intelligence Organization, also author of Body of Secrets: Anatomoy of the Ultra-Secret National Security Agency, and most recently, A Pretext for War. And joining us on the phone from Massachusetts is Christopher Pyle. In 1970, Pyle disclosed the military surveillance of civilian politics and helped to end that practice. He is a former military intelligence officer. Let’s begin with Jim Bamford in Washington. Can you talk about precisely what has been revealed? What exactly is the National Security Agency doing, Jim?

JAMES BAMFORD: Well, there hasn’t really been very much revealed at all, simply the fact that the Bush administration has admitted that they have been eavesdropping on U.S. citizens within the United States, and apparently, they were focusing on international communications; in other words, where at least one of the terminals of the phone call was outside the United States. So that’s about all we know right now. The New York Times indicated that there was somewhere between several hundred and maybe several thousand people that were affected by this. But apparently, it’s been going on at least since 2001, so there’s probably quite a few people out there that have been surveilled, and have no knowledge about it, and again, without any court order.

AMY GOODMAN: Now, has this never happened before?

JAMES BAMFORD: No. It’s happened quite a bit before. Throughout the 1960s — actually, since the end of World War II, the NSA was doing illegal spying. One project was known as Project Shamrock, where they were getting illegal access to all the telegrams that came into the United States, went through the United States, or went out of the United States, every single day. They would go to New York, and Western Union would turn over all the telegrams to them. And that continued right up until the 1970s. And they were also doing a lot of targeting on communications on behalf of the C.I.A. and other agencies, telephone communications and so forth, and again, without any warrants.

So that was why, after these revelations became public and during the Church Committee hearings in 1975, they created the FISA Act, the Foreign Intelligence Surveillance Act and then the Foreign Intelligence Surveillance Court to act as sort of a buffer or a firewall between the whatever president, whatever administration happens to be in power and the American public, so there will be some neutral arbiter there to take a look at the request and decide whether the government should be able to do the eavesdropping or not.

AMY GOODMAN: We’re going to go to a break. We’ll be rejoined by James Bamford, investigative journalist, Martin Garbus, First Amendment attorney, and former military intelligence analyst, Christopher Pyle.

[break]

AMY GOODMAN: We’re talking about the revelations of the National Security Agency spying on Americans. We’re joined by James Bamford, investigative journalist in Washington. In a moment, Christopher Pyle, former military intelligence analyst who exposed this kind of surveillance back decades ago, and in our studio in New York, Martin Garbus, who is a well known First Amendment attorney. Martin Garbus, you wrote a piece in a letter to the editor in the New York Times that appeared on Saturday that talks about, well, both the expose, but why the Times held onto it. What is the significance of this?

MARTIN GARBUS: Well, I think it’s the first time in a while that the Times has done something like that, and I compared it to the Pentagon Papers case, when they went ahead and they ignored what the government said. Here the government had meetings with the New York Times.

AMY GOODMAN: Stop for a moment, for kids who are listening who don’t even know what the Pentagon Papers are.

MARTIN GARBUS: The Pentagon Papers were documents that ultimately Daniel Ellsberg released. They were secret documents which indicated and gave information about our involvement in Korea and North Vietnam, in both those wars. And those documents released, the government then tried to stop the publication of those papers. The New York Times and the Washington Post both went ahead and published those stories. The government, at that time, made the claim that our foreign policy would be affected, and that particular individuals or many individuals would be killed because of the release of secret information. And the Times and the Washington Post ignored that.

What we’ve recently seen is both the New York Times and the Washington Post have taken a totally different tack. The Washington Post, when it wrote about the secret prisons, was asked by the government not to give the locations of those secret prisons, and the Washington Post acceded to that. The New York Times, for one — at least one year, held up the publication of this story, and had this story come out in 2002, 2003, 2004, probably the politics in the country would be very, very different. And the New York Times had meetings with the government, and according to the New York Times, they made an investigation, and they concluded what there were legal safeguards in effect that permitted the government’s policy.

Now, the New York Times has a lot of very sophisticated lawyers, and those lawyers know better than that. There is a case, and I’d like to refer to something James Bamford said, with respect to how long this has gone on before. There had been a case in 1972, when Nixon tried to do the same thing. Lenny Wineglass, a very fine lawyer, argued the case in District Court. Nixon claimed that you could, for domestic surveillance, that you had a right to use executive warrants, as he claimed, the permission of the President and the Attorney General. And he said that that was sufficient. This was at a time of civil unrest, according to him, 1971, 1972. There were some bombings within the United States. And he went out, and he tried to survey, surveillance people, eavesdropping, wiretapping without judicial warrants, without probable cause.

And the United States Supreme Court said no. The United States Supreme Court said you can’t do this. The United States Supreme Court said that the President does not have that kind of power within the Constitution. He has the power to protect the nation, but this goes beyond that. He can’t violate the Constitution. That’s exactly what’s happening now. And what’s going to happen is: You now have a different Supreme Court. You’re going to have Roberts, probably Alito, and my judgment is they’re going to uphold what Bush is doing, and in effect, they’re going to reverse, though not directly, the Nixon case. It’s a strategy to get past that Nixon case and to give the President the broadest powers that any President has ever had.

AMY GOODMAN: Let’s go to Christopher Pyle. He is a Professor of Politics at Mount Holyoke College right now, but formerly was a military intelligence officer who exposed — blew the whistle on the Pentagon’s spying on civilians in this country. Can you go back in time, Professor Pyle, and talk about what happened, its significance, and what you ended up doing about it?

CHRISTOPHER PYLE: In the 1960s, Army intelligence had 1,500 plainclothes agents watching every demonstration of 20 people or more throughout the United States. They had a giant warehouse in Baltimore, Maryland, full of information on the law-abiding activities of American citizens, protest politics, mainly. I learned about this while I was in the Army, just before I was discharged, and I wrote about it after I was discharged, and then investigated it for two congressional committees: Senator Ervin’s Committee on Constitutional Rights and Senator Church’s Select Committee on Intelligence. As a result of those investigations, the entire U.S. Army Intelligence Command was abolished and all of its files were burned. And then, after that, the Senate Intelligence Committee wrote the Foreign Intelligence Surveillance Act of 1978, which tried to stop the warrantless surveillance of electronic communications.

AMY GOODMAN: Can you talk about your own counterintelligence program that you set up once you left the Pentagon?

CHRISTOPHER PYLE: Well, after I disclosed the Army’s surveillance, I began hearing from students I had taught at the U.S. Army Intelligence School. I was head of the legal section there, and I taught investigative legal principles. I taught them not to do what it turned out they were doing. And so I began to conduct my own investigation; later did it under the auspices of Senator Ervin’s committee, and through that investigation, recruited 125 agents to tell what they knew about the spying to members of Congress, to the courts and to the press.

AMY GOODMAN: And what happened?

CHRISTOPHER PYLE: The military said they didn’t do it, and beside, they stopped, and they wouldn’t do it again. We were unable to pass legislation permanently ending it, but extensive assurance was given, executive orders were issued, and the Army was supposed to be out of the domestic spying business.

AMY GOODMAN: So, your response when you heard about what the National Security Agency has been authorized to do by the President?

CHRISTOPHER PYLE: Not terribly surprised, but the one piece of it that amazes me is that the President admitted that he personally ordered the National Security Agency to violate a federal statute. Now, he has no Constitutional authority to do that. The Constitution says he must take care that all laws be faithfully executed, not just the ones he likes. The statute says it’s, as you said at the beginning of the program, that the Foreign Intelligence Surveillance Act is the exclusive law governing these international intercepts, and he violated it anyway. And the law also says that any person who violates that law is guilty of a felony, punishable by up to five years in prison. By the plain meaning of the law, the President is a criminal.

AMY GOODMAN: Martin Garbus, you say this is an impeachable offense.

MARTIN GARBUS: Yes, I agree that it is a crime, that it is an impeachable offense. The question is: What will happen? The mere fact that it’s impeachable doesn’t necessarily mean that the Supreme Court will find that, and it doesn’t mean that he will necessarily be impeached. He should be impeached, but he is claiming, for the first time, that he has the authority to do this, even though FISA is there, because he has relied on counsel. He has relied on John Yoo. He has relied previously on Ashcroft, and he’s now relying on Gonzales. And all of these people are telling him that it’s legal. All these people are telling him that the President’s powers can be expanded, even though FISA is there. And the President has come up with an excuse, which I don’t see how anybody can buy. In FISA, you can get a warrant in five minutes. You just go before the FISA court and you get your warrant, and that’s all there is to it. There’s no argument —

AMY GOODMAN: Hasn’t the criticism been that FISA gives them too easily?

MARTIN GARBUS: Surely. Your statistics were correct. Namely, that out of some 15,000 warrant applications, there were eight that were denied since 1978, so it’s basically a rubber stamp. Now, what Bush said is, 'I don't have the time,’ he says, 'to go to FISA.' Now, everybody has had the time to go to FISA. It doesn’t take any time at all. So, that the argument that he has the right to avoid FISA, I think, is a false argument.

AMY GOODMAN: James Bamford, if you could explain how exactly the surveillance happens, how does it work at the NSA? What was allowed before, in terms of monitoring overseas conversations, and where are these listening devices?

JAMES BAMFORD: Well, before I get into that, just one other comment on what we just have been talking about. When the Foreign Intelligence Surveillance Act was created in 1978, one of the things that the Attorney General at the time, Griffin Bell, said — he testified before the intelligence committee, and he said that the current bill recognizes no inherent power of the President to conduct electronic surveillance. He said, 'This bill specifically states that the procedures in the bill are the exclusive means by which electronic surveillance may be conducted.' In other words, what the President is saying is that he has these inherent powers to conduct electronic surveillance, but the whole reason for creating this act, according to the Attorney General at the time, was to prevent the President from using any inherent powers and to use exclusively this act.

Now, the way the NSA actually does its eavesdropping, is it — if you think about the FBI being sort of a retail eavesdropper, they will go from house to house or put a bug on a central telephone company’s office for where a person happens to have their junction box, or whatever. The NSA, on the other hand, does it wholesale, where they take entire streams of communications coming down from satellites, which can contain millions of communications, and they sort of intercept those communications with large dishes and filter the information through very quick computers that are loaded with names of people, words that they’re looking for, and at one point they — one listening post in the central part of England, for example, they intercept two million pieces of communications an hour. So that’s emails, faxes, telephone calls, cellular calls and so forth. So, it’s an enormous amount of eavesdropping, and Senator Frank Church, back in the mid-70s, when he was conducting his investigation of NSA, said that if NSA’s technology were ever turned on the American public, there would be no place to hide.

AMY GOODMAN: And how it actually goes down? I mean, how they record?

JAMES BAMFORD: Well, they record it by picking up the signals. The signals are transmitted by — either by satellite or microwave or by undersea cable. And the NSA has developed methods for eavesdropping on all of those techniques, either using satellites in space or ground stations or submarines that can actually tap into undersea cables. So, they have perfected the methods by which they can intercept all of the different forms of communications, even fiber optic communications, which are buried underground. And the key is that being able to sift through it all and pick out the communications that they want. But again, the NSA is supposed to be directed externally. And the problem is once a president decides to secretly turn the NSA’s big ear internally, and that’s what has been happening.

AMY GOODMAN: On Saturday, I was talking to some U.N. personnel and ambassadors, ambassadors to the United Nations. Now, we know about the scandal of the Security Council members being eavesdropped on, wiretapped, when there was pressure in the lead up to the invasion. When I asked them about this, you know, they take this as standard fare at the U.N. Everyone assumes that they’re being wiretapped.

JAMES BAMFORD: Well, that’s true, and there were a number of revelations that came out early on in the lead up to the war in Iraq. There was an employee of the British equivalent of NSA, called GCHQ, Government Communications Headquarters, who leaked a memorandum from the NSA which specifically said they were — they wanted extra targeting on some of the members of the Security Council, in order to try to get them to change their votes in favor of the United States. So by eavesdropping on their communications, they could find out — say, it was in Gambia or something, they want a bridge, so the United States can offer money to help them build a bridge, or whatever it is, offer some kind of a bribe in order to get their vote. So, that was why that document was leaked, and it showed very clearly that the U.S. was using the NSA to help sort of twist arms to get the votes they wanted in the United Nations.

AMY GOODMAN: Professor Christopher Pyle?

CHRISTOPHER PYLE: The problem here is everybody knows that international intercepts go on all the time, particularly those with political or economic advantage. The problem with the latest disclosure is it’s focused upon persons in the United States.

Two months ago, two agents of the Department of Homeland Security went to visit a student at the University of Massachusetts at Dartmouth. They were concerned because he had made an interlibrary loan request for Mao Tse-Tung’s book, the Little Red Book. Now, somehow the government was monitoring the email record that sought to get that book out of Peking, because the kid was looking for the official Peking version. Now, somebody is monitoring interlibrary loans. This would seem to occur under Section 215 of the PATRIOT Act. But the question is who is carrying it out? And it could very well be NSA.

And this is precisely what the Church Committee, which I worked for, tried to stop, this kind of vacuum cleaner surveillance, this watch-listing of books and titles and words and names of people who are loyal Americans who are carrying out constitutionally protected activity. The agents actually said that the Little Red Book is on a watch list, and so that’s why they had to investigate why he wanted to read the Little Red Book.

AMY GOODMAN: Christopher Pyle, you were a military intelligence analyst. On this issue of people who say, you know, this is a different time after 9/11, and we — the U.S. has to do everything it can, no holds barred, to go after terrorists, when you have this vacuum cleaner approach, when you are taking in so much information, can this actually distract from — I mean, forget the moral implications, the legal implications, the constitutional implications — can it actually hurt efforts to protect national security?

CHRISTOPHER PYLE: It entirely overwhelms the agents who are doing the analysis by gushing in this much information from so many agencies on so much trivia. The whole system is based upon the assumption that the way you find a needle in a haystack is to add more hay.

AMY GOODMAN: Martin Garbus.

MARTIN GARBUS: I think that one of the things that we should be aware of is the way the argument by the Bush administration has shifted. First, when they admitted to this wiretapping, they were saying it was wiretaps for surveillance between domestics and people overseas. Now, they’ve admitted it’s the wiretapping and investigation of people within the United States, domestic calls to domestic calls. Secondly, the way the argument has shifted: The argument originally had been that the mandate, given as a result of September 11, gave the President the power to do this, as it gave him the power to do torture, as it gave him the power to restrict detainees, as it gave him the power to stop habeas corpus. The argument has now shifted. They’re no longer claiming that it’s that particular enactment which gives him this authority. This is a straight constitutional argument, saying that under the Constitution, he has the power to protect the United States, and he can do anything under the Constitution to protect the United States, and therefore, he now has a constitutional power, not a statutory power, and that was, again, the argument in the Nixon case.

AMY GOODMAN: And the issue about torture, the Levin-Graham amendment?

MARTIN GARBUS: I think that —- I think it’s astonishing, first of all, that it’s the Levin amendment. And when that first passed in the Senate—-

AMY GOODMAN: This is Michigan Senator Carl Levin.

MARTIN GARBUS: One of the most, perhaps, liberal, one could argue, members of the Senate. Now, when that bill passed in the Senate, it was 79-16. So, I think it’s extraordinary the extent to which the Democrats have capitulated on this particular issue. I think this business about the PATRIOT Act, I think it’s just a firestorm. I think, ultimately, it’s going to be passed, and they are going to rely on the President’s authority at the end of the day. You really don’t need the PATRIOT Act if the President has all of this authority.

So, they’re switching the argument. They no longer need that particular statute. This comes within the President’s Article 2, Section 2 rights under the Constitution to protect the people. They have changed the battleground to bring it close to the Nixon case, which they, with this new Supreme Court, will overrule. The Nixon case was ’72. At that time, you had Brennan, Marshall, Douglas. This is a very, very different court.

AMY GOODMAN: Martin Garbus, I want to thank you for being with us, well-known First Amendment attorney; James Bamford, investigative journalist; and Christopher Pyle, Professor of Politics at Mount Holyoke, also a former military intelligence officer.

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