Newsweek: Ashcroft Refused Extension of Warrantless Eavesdropping
Earlier I wrote about today's New York Times article highlighting Alberto Gonzales' and Andrew Cards' 2004 hospital visit to former Attorney General John Ashcroft to get him to sign off on an extension of Bush's warrantless NSA electronic surveillance program.
The Times implies, but does not state, that Ashcroft refused. Newsweek confirms his refusal:
in March 2004, White House chief of staff Card and White House Counsel Gonzales visited Ashcroft, the seriously ill attorney general, to try to get him to overrule Comey, who was officially acting as A.G. while Ashcroft was incapacitated. Ashcroft refused, and a battle over what to do broke out in the Justice Department and at the White House. Finally, sometime in the summer of 2004, a compromise was reached, with Comey onboard: according to an account in The New York Times, Justice and the NSA refined a checklist to follow in deciding whether "probable cause" existed to start monitoring someone's conversations.
As to James Comey's objections, Newsweek reports:
According to several officials who would not be identified talking about still-classified matters, Comey (among other government lawyers) argued that the authority for the programâ”the 2001 "use of force" resolutionâ”had grown stale. It was time to audit the program before proceeding in any case, Comey said.
I think this is key. There are two ways under FISA that the NSA could conduct warrantless surveillance without a court order. I explain both here. One is the 72 hour exeception that provides for same in emergency-type situations. (Section 1805(f)). At the end of the 72 hours, a FISA court order is to be applied for.
The other provision allows for 15 days of warrantless monitoring following a declaration of war. Marty Lederman at Balkinization explains:
FISA itself is one of those rare statutes that expressly contemplates that the rules for Executive conduct might need to be altered during wartime. The statute provides that "[n]otwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." 50 U.S.C. 1811.
Why does the statute permit warrantless surveillance for only the first 15 days of a war? After all, the need for intelligence ordinarily will be just as great throughout the war, not only during its first 15 days. The answer is that 15 days was deemed sufficient to give the President the opportunity to ask Congress for a statutory amendment. As the Conference Report explained: "The Conferees intend that this [fifteen-day] period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency. The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter.â H.R. Conf. Rep. No. 95-1720, at 34 (1978).
The Bush Administration could have, but did not, take advantage of the 15-day window for legislative change that Congress specifically inserted in FISA (perhaps because it was informed that an amendment to allow this sort of data-mining would have been a political nonstarter). Instead, it simply decided to violate the law. Isn't that choice to bypass the democratic process a bit disconcerting, even if (like Gary Schmitt) one thinks the law was a lousy idea to begin with?
It seems like Comey and Ashcroft balked because Bush's NSA program for continued warrantless surveillance did not satisfy either of the two exceptions. They were right. After months of infighting, Newsweek reports (as first noted in the Times) that a compromise was worked out in the form of an auditing program for the NSA surveillance.
Finally, sometime in the summer of 2004, a compromise was reached, with Comey onboard: according to an account in The New York Times, Justice and the NSA refined a checklist to follow in deciding whether "probable cause" existed to start monitoring someone's conversations.
Newsweek makes the distinction (as most on the right conveniently overlook, especially when they try to compare the Plame leakers to the leakers to the Times) that the motive of the leaker can justify the leak. Whistle-blowing is allowed. But where does Newsweek get its support for the last sentence below:
Bureaucrats frustrated by their political bosses have one time-honored weapon: the leak. Though it is unclear exactly how the NSA eavesdropping story made its way to The New York Times (last week, the Justice Department launched a formal leak investigation), the sources were probably officials disgruntled for reasons of morality and public-mindedness and possibly less-noble motivations (turf battles, score settling).
Who's leaking that? Obviously, Administration officials. And why does Newsweek credit their theory by using the word "probably," as if it's likely true? I think with what we know now, it's more likely the leakers were motivated by their belief Bush was acting illegally, not immorally.
One more item from Newsweek: The warrantless NSA program spied on 500 Americans a day:
Bush repeatedly approved of what the NSA calls a "special collection program" that eavesdroppedâ”without warrantsâ”on about 500 Americans a day.
I wonder if that should have been "500 persons in the United States," as opposed to Americans.
Speaking to reporters today while making one of his rare visits to injured troops at a hospital, Bush told reporters that the program only tracked incoming calls to the U.S.
If Newsweek is correct that 500 Americans' calls were tracked, then I'd bet the number of actual calls and contacts surveilled -- a number that would include foreigners within the U.S.-- likely was much, much higher.
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