Pushing the Limits Of Wartime
Powers
Washington Post
By Barton Gellman and Dafna Linzer
Washington Post Staff Writers
Sunday, December 18, 2005; Page A01
In his four-year campaign against al Qaeda, President Bush has turned the
U.S. national security apparatus inward to secretly collect information on
American citizens on a scale unmatched since the intelligence reforms of the
1970s.
The president's emphatic defense yesterday of warrantless eavesdropping on
U.S. citizens and residents marked the third time in as many months that the
White House has been obliged to defend a departure from previous restraints on
domestic surveillance. In each case, the Bush administration concealed the
program's dimensions or existence from the public and from most members of
Congress.
Since October, news accounts have disclosed a burgeoning Pentagon campaign
for "detecting, identifying and engaging" internal enemies that included a
database with information on peace protesters. A debate has roiled over the
FBI's use of national security letters to obtain secret access to the personal
records of tens of thousands of Americans. And now come revelations of the
National Security Agency's interception of telephone calls and e-mails from the
United States -- without notice to the federal court that has held jurisdiction
over domestic spying since 1978.
Defiant in the face of criticism, the Bush administration has portrayed each
surveillance initiative as a defense of American freedom. Bush said yesterday
that his NSA eavesdropping directives were "critical to saving American lives"
and "consistent with U.S. law and the Constitution." After years of portraying
an offensive waged largely overseas, Bush justified the internal surveillance
with new emphasis on "the home front" and the need to hunt down "terrorists
here at home."
Bush's constitutional argument, in the eyes of some legal scholars and
previous White House advisers, relies on extraordinary claims of presidential
war-making power. Bush said yesterday that the lawfulness of his directives was
affirmed by the attorney general and White House counsel, a list that omitted
the legislative and judicial branches of government. On occasion the Bush
administration has explicitly rejected the authority of courts and Congress to
impose boundaries on the power of the commander in chief, describing the
president's war-making powers in legal briefs as "plenary" -- a term defined as
"full," "complete," and "absolute."
A high-ranking intelligence official with firsthand knowledge said in an
interview yesterday that Vice President Cheney, then-Director of Central
Intelligence George J. Tenet and Michael V. Hayden, then a lieutenant general
and director of the National Security Agency, briefed four key members of
Congress about the NSA's new domestic surveillance on Oct. 25, 2001, and Nov.
14, 2001, shortly after Bush signed a highly classified directive that
eliminated some restrictions on eavesdropping against U.S. citizens and
permanent residents.
In describing the briefings, administration officials made clear that Cheney
was announcing a decision, not asking permission from Congress. How much the
legislators learned is in dispute.
Former senator Bob Graham (D-Fla.), who chaired the Senate intelligence
committee and is the only participant thus far to describe the meetings
extensively and on the record, said in interviews Friday night and yesterday
that he remembers "no discussion about expanding [NSA eavesdropping] to include
conversations of U.S. citizens or conversations that originated or ended in the
United States" -- and no mention of the president's intent to bypass the
Foreign Intelligence Surveillance Court.
"I came out of the room with the full sense that we were dealing with a
change in technology but not policy," Graham said, with new opportunities to
intercept overseas calls that passed through U.S. switches. He believed
eavesdropping would continue to be limited to "calls that initiated outside the
United States, had a destination outside the United States but that transferred
through a U.S.-based communications system."
Graham said the latest disclosures suggest that the president decided to go
"beyond foreign communications to using this as a pretext for listening to U.S.
citizens' communications. There was no discussion of anything like that in the
meeting with Cheney."
The high-ranking intelligence official, who spoke with White House
permission but said he was not authorized to be identified by name, said Graham
is "misremembering the briefings," which in fact were "very, very
comprehensive." The official declined to describe any of the substance of the
meetings, but said they were intended "to make sure the Hill knows this program
in its entirety, in order to never, ever be faced with the circumstance that
someone says, 'I was briefed on this but I had no idea that -- ' and you can
fill in the rest."
By Graham's account, the official said, "it appears that we held a briefing
to say that nothing is different . . . . Why would we have a meeting in the
vice president's office to talk about a change and then tell the members of
Congress there is no change?"
House Minority Leader Nancy Pelosi (Calif.), who was also present as then
ranking Democrat of the House intelligence panel, said in a statement yesterday
evening that the briefing described "President Bush's decision to provide
authority to the National Security Agency to conduct unspecified activities."
She said she "expressed my strong concerns" but did not elaborate.
The NSA disclosures follow exposure of two other domestic surveillance
initiatives that drew shocked reactions from Congress and some members of the
public in recent months.
Beginning in October, The Washington Post published articles describing a
three-year-old Pentagon agency, the size and budget of which are classified,
with wide new authority to undertake domestic investigations and operations
against potential threats from U.S. residents and organizations against
military personnel and facilities. The Counterintelligence Field Activity, or
CIFA, began as a small policy-coordination office but has grown to encompass
nine directorates and a staff exceeding 1,000. The agency's Talon database,
collecting unconfirmed reports of suspicious activity from military bases and
organizations around the country, has included "threat reports" of peaceful
civilian protests and demonstrations.
CIFA has also been empowered with what the military calls "tasking
authority" -- the ability to give operational orders -- over Army, Navy and Air
Force units whose combined roster of investigators, about 4,000, is nearly as
large as the number of FBI special agents assigned to counterterrorist squads.
Pentagon officials said this month they had ordered a review of the program
after disclosures, in The Post, NBC News and the washingtonpost.com Web log of
William M. Arkin, that CIFA compiled information about U.S. citizens engaging
in constitutionally protected political activity such as protests against
military recruiting.
In November, The Post disclosed an exponentially growing practice of
domestic surveillance under the USA Patriot Act, using FBI demands for
information known as "national security letters." Created in the 1970s for
espionage and terrorism investigations, the letters enabled secret FBI review
of the private telephone and financial records of suspected foreign agents. The
Bush administration's guidelines after the Patriot Act transformed those
letters by permitting clandestine scrutiny of U.S. residents and visitors who
are not alleged to be terrorists or spies.
The Post reported that the FBI has issued tens of thousands of national
security letters, extending the bureau's reach as never before into the
telephone calls, correspondence and financial lives of ordinary Americans. Most
of the U.S. residents and citizens whose records were screened, the FBI
acknowledged, were not suspected of wrongdoing.
The burgeoning use of national security letters coincided with an
unannounced decision to deposit all the information they yield into government
data banks -- and to share those private records widely, in the federal
government and beyond. In late 2003, the Bush administration reversed a
long-standing policy requiring agents to destroy their files on innocent
American citizens, companies and residents when investigations closed.
Yesterday's acknowledgment of warrantless NSA eavesdropping brought the most
forthright statement from the president that his war on terrorism is targeting
not only "enemies across the world" but "terrorists here at home." In the
"first war of the 21st century," he said, "one of the most critical
battlefronts is the home front."
Bush sidestepped some of the implications by citing examples only of
foreigners who infiltrated the United States -- Saudi citizens Nawaf Alhazmi
and Khalid Almihdhar, two of the Sept. 11, 2001, hijackers. But the most
fundamental changes undertaken in the Bush administration's surveillance policy
are the ones that have broadened the powers of the NSA, FBI and Pentagon to spy
on "U.S. persons" -- American citizens, permanent residents and corporations --
on American soil.
Roger Cressey, who was principal deputy to the White House counterterrorism
chief when terrorists destroyed the World Trade Center and a wing of the
Pentagon, said "the amount of domestic surveillance is an admission of
fundamental gaps in our understanding of what is happening in our country."
Those anxieties about unknown threats have ebbed and flowed since World War
I, according to a bipartisan government commission chaired by Sen. Daniel
Patrick Moynihan. President Woodrow Wilson warned against "the poison of
disloyalty" and another loyalty campaign created black lists of accused
Communists in the 1950s. In the 1960s and 1970s, the Army and the NSA collected
files and eavesdropped on thousands of anti-Vietnam War and civil rights
activists.
Congress asserted itself in the 1970s, imposing oversight requirements and
passing the Foreign Intelligence Surveillance Act (FISA). Kate Martin, director
of the Center for National Security Studies, said FISA "expressly made it a
crime for government officials 'acting under color of law' to engage in
electronic eavesdropping 'other than pursuant to statute.' " FISA described
itself, along with the criminal wiretap statute, as "the exclusive means by
which electronic surveillance . . . may be conducted."
No president before Bush mounted a frontal challenge to Congress's authority
to limit espionage against Americans. In a Sept. 25, 2002, brief signed by
then-Attorney General John D. Ashcroft, the Justice Department asserted "the
Constitution vests in the President inherent authority to conduct warrantless
intelligence surveillance (electronic or otherwise) of foreign powers or their
agents, and Congress cannot by statute extinguish that constitutional
authority."
The brief made no distinction between suspected agents who are U.S. citizens
and those who are not. Other Bush administration legal arguments have said the
"war on terror" is global and indefinite in scope, effectively removing
traditional limits of wartime authority to the times and places of imminent or
actual battle.
"There is a lot of discussion out there that we shouldn't be dividing
Americans and foreigners, but terrorists and non-terrorists," said Gordon
Oehler, a former chief of the CIA's Counterterrorist Center who served on last
year's special commission assessing U.S. intelligence.
By law, according to University of Chicago scholar Geoffrey Stone, the
differences are fundamental: Americans have constitutional protections that are
enforceable in court whether their conversations are domestic or
international.
Bush's assertion that eavesdropping takes place only on U.S. calls to
overseas phones, Stone said, "is no different, as far as the law is concerned,
from saying we only do it on Tuesdays."
Michael J. Woods, who was chief of the FBI's national security law unit when
Bush signed the NSA directive, described the ongoing program as "very
dangerous." In the immediate aftermath of a devastating attack, he said, the
decision was a justifiable emergency response. In 2006, "we ought to be past
the time of emergency responses. We ought to have more considered views now. .
. . We have time to debate a legal regime and what's appropriate."
Staff writers Charles Lane and Walter Pincus and researcher Julie Tate
contributed to this report.
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