President Bush, the National Security Agency, and Surveillance
posted by Daniel Solove
The New York Times has an in-depth story about how President Bush authorized the National Security Agency (NSA) to engage in surveillance after 9/11:
Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.
The previously undisclosed decision to permit some eavesdropping inside the country without court approval represents a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.
“This is really a sea change,” said a former senior official who specializes in national security law. “It’s almost a mainstay of this country that the N.S.A. only does foreign searches.”
Read the article. It is, in my view, quite startling. Here’s another very troubling fact:
Mr. Bush’s executive order allowing some warrantless eavesdropping on those inside the United States – including American citizens, permanent legal residents, tourists and other foreigners – is based on classified legal opinions that assert that the president has broad powers to order such searches. . . .
The legal opinions that support the N.S.A. operation remain classified, but they appear to have followed private discussions among senior administration lawyers and other officials about the need to pursue aggressive strategies that once may have been seen as crossing a legal line, according to senior officials who participated in the discussions.
So, in other words, the President can secretly authorize secret domestic surveillance by an agency that typically conducts surveillance abroad . . . and do so based on a legal rationale that is secret. This is deeply troubling.
UPDATE: Orin Kerr has some interesting thoughts here.
UPDATE #2: Steve Vladeck’s post at PrawfsBlawg is also worth reading. He writes:
I’m not sure what’s scarier — that the NSA has been listening, or that the Administration successfully convinced the Times to hold off on the story for an entire year?!? . . . [W]hen the government conducts a campaign of domestic, internal surveillance that seems lacking for both historical and legal precedent, is it really responsible journalism to not report on that campaign for an entire year?