The revelation that Bush approved spying by the NSA on Americans is an important issue but I am afraid that it is being framed in partisan political rhetoric. That limits any discussion among the populous. So I will attempt to flesh out template responses by the whacks on the right and the zealots on the left and provide a true assessment of the issue.
First, we have to look at the actions of the President. It is quite simple. President Bush allowed the NSA to monitor the phone calls of Americans placing calls overseas that they suspected of having ties to terrorist organizations. The President claimed that this action is legal and necessary to protect American lives. The power to do this, he claims, is derived from the Constitution and the Authorization to Use Military Force law passed by Congress after the September 11 attack. The Bush Administration has interpreted that law in way that allows them to skirt the provisions of the 1978 Foreign Intelligence Surveillance Act.
This where the waters get muddy. The template response from the right is that during a time of war the President has the power to do this and they give him a pass because they would rather the President approve this measure rather than deal with another attack. What is lost on them is the broader implications of allowing the Executive branch unlimited powers with no oversight.
Did President Bush break the law? In short, yes. The 1978 Foreign Intelligence Surveillance Acts states:
The President may authorize, through the Attorney General, the surveillance without a court order for the period of one year provided it is only for foreign intelligence information and there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.Again, we are dealing with muddy waters so maybe a more important question to ask is why did President Bush choose to not work within the framework of the law? I've heard several excuses from Righties but the following are two most responses that I've read:
Defense #1) Acting outside of FISA allows the President to be more nimble.
FACT: FISA has issued over 19,000 warrants since 1979 and has denied only five requests. So it is highly unlikely that Bush would have found any pushback from the courts. The President can get a warrant any time of day and the court has a maximum of 72 hours to respond the request. But when the President calls for a request that is in regards to national security, no judge is going to wait that long to issue a warrant.
Defense #2) We can't wait months for the courts to act.
FACT: The FISA allows the judge to issue a warrant that is retroactive. Meaning, the President could start the surveillance in March and obtain a warrant in June and still be within the confines of the law. The gives the President ample leeway to act on any information.
Defense #3) The President has this power in wartime.
FACT: The President war powers come after a declaration of war by the Congress. These powers did not come into play during the Cold War, the War on Drugs and it certainly shouldn't apply to an open-ended war which what the War on Terror is. The Authorization to Use Military Force passed by Congress was for the purpose of military action in Afghanistan and Iraq.
I believe this subject is more important that what is being portrayed in the media. President Bush has pushed the envelope for five years and I wonder will Congress finally have the nerve to start acting like they are more than a rubber stamp for the Oval Office and act more like a part of the government with actual responsibilities to the American people. We will see.
Where’s the Outrage? (Newsweek Article)
Bush's Snoopgate (Newsweek Article)
Cheney Defends Bush