James Madison warned Thomas Jefferson, "Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad."

CONTENTS

1. THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)

In the mid-1970s, the Church Committee investigated illegal government actions on American citizens during the Vietnam War. It recommended the creation of the Foreign Intelligence Surveillance Act (FISA) of 1978.

In five different sections of FISA, Congress made clear its intention to prevent any future president from carrying out warrantless eavesdropping on Americans. In one section, Congress repealed the provision the government had relied upon in claiming inherent presidential authority for warrantless wiretaps. In another, Congress expressly made it a crime for government officials “acting under color of law” to engage in electronic eavesdropping “other than pursuant to statute.” In yet another, Congress stated explicitly that FISA and criminal wiretap laws “shall be the exclusive means by which electronic surveillance ... communications may be conducted.”

FISA made it a crime, punishable by up to five years in prison, to conduct electronic surveillance, except as “authorized by and conducted pursuant to a search warrant or court order.” Moreover, since 1978, 18 U.S.C. Sec. 2511(2)(f) directed that Title III and FISA “shall be the exclusive means by which electronic surveillance ... and the interception of domestic wire and oral communications may be conducted.”

Under FISA, the “secret” court was notoriously compliant with government requests for warrants. In its first 25 years, the court approved over 19,000 warrants -- with the numbers growing every year -- and turned down just five requests. (American Progress Action, December 16, 2005; New York Times, December 25, 2005)

The domestic espionage carried out by the Bush administration was particularly unnecessary, because the White House already had authority to conduct surveillance under the law. Under the Patriot Act, for example, law enforcement and intelligence officials were required to seek a warrant from FISA each time it wanted to eavesdrop within the United States. (American Progress Action, December 16, 2005)

Congress rejected the Bush administration’s request for war-making authority in talks on a resolution passed after 9/11. Senate Majority leader Tom Daschle helped negotiate the resolution with the White House. He said the resolution did not grant Bush authority to order warrantless spying on Americans suspected of terrorist ties. Four years later, Daschle said warrantless wiretaps of Americans never came up in the negotiations. (Washington Post, December 23, 2005)

Daschle said he believed the 98 senators who voted in favor of authorization of force against Al Qaeda did not believe that they were also voting for warrantless domestic surveillance. Daschle also said the White House sought, but failed, to have included in the resolution language that would have given the president war powers within the United States. (Washington Post, December 23, 2005)

FISA JUDGES QUESTION THE LEGALITY OF THE PROGRAM. Days after the public was made aware that Bush had authorized warrantless wiretaps, United States District Judge James Robertson resigned from FISA for which he had served for 11 years. Meanwhile, the other FISA judges demanded a briefing from Bush administration officials on why they believed it was legal to bypass their authority and eavesdrop on the telephone conversations and email of American citizens without a warrant. (The Guardian, December 23, 2005)

Between 2001 and 2005, a top Justice Department lawyer on two occasions warned District Judge Colleen Kollar-Kotelly, the presiding judge of a secret surveillance court, that information overheard in the eavesdropping program might have been improperly used to obtain wiretap warrants in the court. (Washington Post, February 9, 2006)

Kollar-Kotelly as well as her predecessor, Royce Lamberth, had expressed serious doubts about the legality of the warrantless monitoring of phone calls and e-mails ordered by Bush. Both judges had insisted that no information obtained this way would be used to gain warrants from their court, and both had been assured by Bush administration officials it would never happen. (Washington Post, February 9, 2006)

2. THE NATIONAL SCEURITY AGENCY (NSA)

In early 2002 -- months after 9/11 -- Bush secretly authorized the NSA 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. This went far beyond the expanded counterterrorism powers granted by Congress under the Patriot Act. (New York Times, December 14, 2005)

The program revived a domestic spying operation at the NSA not seen since the 1960s when the agency routinely eavesdropped on Vietnam War protesters and civil rights activists.

One FBI document indicated that agents in Indianapolis planned to conduct surveillance as part of a “Vegan Community Project.” Another document talked of the Catholic Workers group's “semi-communistic ideology.” A third indicated the bureau’s interest in determining the location of a protest over llama fur planned by People for the Ethical Treatment of Animals. (New York Times, December 20, 2005)

Some NSA officials wanted nothing to do with the domestic espionage program, apparently fearful of participating in an illegal operation. Others were worried that the program might come under scrutiny by congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president. (American Progress Action, December 16, 2005)

After a leak to the New York Times in December 2005, the Bush administration was forced to concede that it kept a database of unverified reports on United States civilians who were “possible threats” to national security interests. Only then did Bush acknowledge that several hundred targeted Americans were wiretapped by the NSA without warrants. But United States officials and outside experts suspected that the Bush administration was engaged in a far broader United States surveillance operation. (New York Times, December 23, 2005)

UPON WHOM DOES THE NSA SPY? The NSA gathered information on thousands of Americans primarily from records of telephone and e-mail communications. This was given to other government agencies which, in turn, cross-checked with other data collected. The NSA provided information to the Defense Intelligence Agency (DIA), FBI, CIA, and DHS. At least one of those organizations, the DIA, used NSA information as the basis for carrying out surveillance of people in the United States suspected of posing a threat. (Washington Post, January 1, 2006)

The NSA began secretly collecting the phone call records of tens of millions of Americans in 2005. The data was provided by AT&T, Verizon, and BellSouth. (USA Today, May 11, 2006)

The Pentagon recorded 1,500 suspicious incidents over a ten-month period, including four dozen anti-war meetings or protests. One example was a small gathering of activists at a Quaker meeting house in Florida to plan protests of military recruiting in high schools. (Agence France Presse, December 15, 2005)

Counterterrorism agents at the FBI conducted numerous surveillance and intelligence-gathering operations that involved, at least indirectly, groups active in causes as diverse as the environment, animal cruelty, and poverty relief. FBI officials claimed they had no interest in monitoring political or social activities and that any investigations that touched on advocacy groups were driven by evidence of criminal or violent activity at public protests and in other settings. (New York Times, December 20, 2005)

The NSA gathered information primarily from records of telephone and e-mail communications. This was given to other government agencies which, in turn, cross-checked with other data collected. The NSA provided information to the Defense Intelligence Agency (DIA), FBI, CIA, and DHS. At least one of those organizations, the DIA, used NSA information as the basis for carrying out surveillance of people in the United States suspected of posing a threat. (Washington Post, January 1, 2006)

The Pentagon recorded 1,500 suspicious incidents over a ten-month period, including four dozen anti-war meetings or protests. One example was a small gathering of activists at a Quaker meeting house in Florida to plan protests of military recruiting in high schools. (Agence France Presse, December 15, 2005)

The NSA used law enforcement agencies, including the Baltimore Police Department, to track members of a city anti-war group as they prepared for protests near the Fort Meade facility. The target of the clandestine surveillance was the Baltimore Pledge of Resistance, a group loosely affiliated with the local chapter of the American Friends Service Committee, whose members included many veteran city peace activists with a history of nonviolent civil disobedience. (Baltimore Sun, January 13, 2006)

An NSA e-mail showed that, before the Pledge of Resistance’s October 4, 2003 protest, the agency relied on a detective working for the Baltimore Police Department’s Criminal Intelligence Unit to monitor the demonstrators’ movements. That unit handled some of the city’s most politically sensitive investigations, including threats to public officials. (Baltimore Sun, January 13, 2006)

The NSA e-mail said:

****ADVISED THAT THEY WILL HAVE SOMEONE WORKING THIS WEEKEND WHO WILL SCOPE OUT THEIR DEPARTURE FROM THEIR DEPARTUREFROM THE AMERICAN FRIENDS SERVIVICE COMMITTEE. … THE BALTIMORE CITY PD WILL GIVE (name of an NSA official blacked out) A HEADS UP AS TO NUMBERS DEPARTING FROM THE GOVANS LOCATION.”

Prior to a July 3, 2004 protest by the Baltimore Pledge of Resistance, another internal NSA e-mail read:

****UPDATE: 11:55 HRS. S/A V------- ADVISED THE PROTESTORS LEFT 4600 YORK ROAD EN ROUTE TO THE NSA CAMPUS ... S/A V----- REPORTED FIVE OR SIX PEOPLE IN A BLUE VAN WITH BLACK BALLOONS, ANTI-WAR SIGNS AND A POSSIBLE HELIUM TANK.”.

After members of the peace group arrived, the NSA e-mail said:

****UPDATE: 1300 HRS. THE SOC WAS ADVISED THE PROTESTORS WERE PROCEEDING TO THE AIRPLANE MEMORIAL WITH THREE HELIUM BALLOONS ATTACHED TO A BANNER THAT STATED "THOSE WHO EXCHANGE FREEDOM FOR SECURITY DESERVE IT, NEITHER WILL ULTIMATELY LOSE BOTH.” (Baltimore Sun, January 13, 2006)

One month after the leak, the ACLU filed two lawsuits against the Bush administration over its domestic spying program to determine whether the operation was used to monitor 10 defense lawyers, journalists, scholars, political activists, and other Americans with ties to the Middle East. (New York Times, January 17, 2006)

3. NORTHCOM

Some of the NSA’s findings were reported to the Northern Command in Colorado. Northcom became an integral player in the Pentagon’s domestic intelligence activity after 9/11. Northcom was set up in October 2002 to conduct operations to deter, prevent, and defeat terrorist threats in the United States and its territories. The command operated two fusion centers that receive and analyze intelligence gathered by other government agencies. (Washington Post, January 1, 2006)

Those Northcom centers conduct data mining, where information received from the NSA, the CIA, the FBI, state and local police, and the Pentagon’s Talon system were cross-checked to see if patterns developed that could indicated terrorist activities. (Washington Post, January 1, 2006)

Talon was a system that civilian and military personnel used to report suspicious activities around military installations. Information from these reports was fed into a database known as the Joint Protection Enterprise Network, which was managed by the Counterintelligence Field Activity, the newest Defense Department intelligence agency to focus primarily on counterterrorism. The database was shared with intelligence and law enforcement agencies and was found in December 2005 to have contained information about peace activists and others protesting the Iraq war that appeared to have no bearing on terrorism. (Washington Post, January 1, 2006)

Some NSA officials wanted nothing to do with the domestic espionage program, apparently fearful of participating in an illegal operation. Others were worried that the program might come under scrutiny by congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president. (American Progress Action, December 16, 2005)

Bush received a severe setback in August 2006 when a federal judge ordered the administration to halt the NSA’s program of domestic eavesdropping, saying it violated the Constitution. Playing the “fear” card, Bush claimed the decision would seriously damage the United States war on terrorism. Attorney General Gonzalez immediately appealed the decision. (New York Times, August 17, 2006)

4. CIFA AND TALON AND NCTC

In 2003, the Pentagon created the Army’s top secret Counterintelligence Field Activity (CIFA). Its role was to track threats and terrorist plots against military installations and personnel inside the United States. (Newsweek, January 30, 2006)

In May 2003, Deputy Defense Secretary Wolfowitz authorized a fact-gathering operation entitled the “Threat and Local Observation Notice” (TOLN) to collect “raw information” about “suspicious incidents.” The data would be fed to CIFA to help the Pentagon’s “terrorism threat warning process.” (Newsweek, January 30, 2006)

Army analysts wrote a report on the Halliburton protest and stored it in CIFA’s database. Quite possibly, CIFA exceeded its authority and conducted unauthorized spying on innocent people and organizations. Wolfowitz acknowledged that some TALON reports might have contained information on United States citizens and groups that never should have been retained. The number of reports with names of United States might have been in the thousands. (Newsweek, January 30, 2006)

The FBI had investigated several activist groups, including People for the Ethical Treatment of Animals and Greenpeace, supposedly in an effort to discover possible ecoterror connections. (Newsweek, January 30, 2006)

TALON collected information on nearly four dozen antiwar meetings or protests, including one at a Quaker meetinghouse in Lake Worth, Florida, and a Students Against War demonstration at a military recruiting fair at the University of California, Santa Cruz. Last Thursday, Cheney called the program “vital” to the country’s defense against Al Qaeda. (Newsweek, January 30, 2006)

At the beginning of 2006, the National Counterterrorism Center (NCTC), a government database of alleged international terrorism suspects or associates, included 325,000 names. That was 400 percent more than when the central list was created in 2003. However, the true number of individuals listed was estimated to be more than 200,000, because the same person could show up under different spellings or aliases. (Washington Post, February 15, 2006)

5. FRICTION WITHIN THE JUSTICE DEPARTMENT

Soon after 9/11, Attorney General Ashcroft loosened restrictions on the FBI’s investigative powers, giving the bureau greater ability to visit and monitor Web sites, mosques, and other public entities in developing terrorism leads. The bureau used that authority to investigate not only groups with suspected ties to foreign terrorists, but also protest groups suspected of having links to violent or disruptive activities. (New York Times, December 20, 2005)

For nine months, from October 2003 to June 2004, assistant attorney general Jack Goldsmith was the central figure in a secret but intense rebellion of a small number of Bush administration lawyers. Along with Comey, Goldsmith stood up to the hard-liners -- centered in Cheney’s office -- who wanted to give Bush virtually unlimited powers in the war on terror. Comey, Goldsmith, and the others fought to bring government spying and interrogation methods within the law. (Newsweek, February 6, 2006)

David Addington, counsel to Cheney, believed that the executive branch was extremely weakened by the backlash from Vietnam and the Watergate scandal. To Addington and Cheney, the 9/11 attacks were justification for unleashing the intelligence community. (Newsweek, February 6, 2006)

One of Addington’s first jobs was to draft a presidential order establishing military commissions to try terrorists caught on the global battlefield. The normal process was to get agreement from lawyers at Defense, State, and other intelligence agencies. But that involved an enormous amount of red tape. (Newsweek, February 6, 2006)

So Addington and Deputy White House Counsel Timothy Flanigan, came up with a solution. They would cut virtually everyone else out of the loop. Addington had the full backing of Bush and Cheney. (Newsweek, February 6, 2006)

Inexperienced White House Counsel Alberto Gonzales was influenced by Addington and Flanigan. John Bellinger, the National Security Council’s top lawyer, was simply not told about the domestic espionage program. (Newsweek, February 6, 2006)

However, Addington’s largest obstacle was the Justice Department’s Office of Legal Counsel. The OLC wielded an enormous amount of power within the executive branch, including the Pentagon and CIA. Its carefully worded opinions were regarded as binding precedent on what the president and all his agencies could and could not legally do. (Newsweek, February 6, 2006)

One of Addington’s close allies was OLC lawyer John Yoo, a Justice Department official. The Bush administration justified the espionage program by a classified legal opinion written by Yoo shortly after 9/11. He wrote, in a formal OLC opinion, that Congress may not “place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.” (Newsweek, February 6, 2006)

Yoo also authored a memo arguing that interrogation techniques only constitute torture if they were “equivalent in intensity to organ failure, impairment of bodily function, or even death.” (American Progress Action, December 16, 2005)

The Bush administration was forced to repudiate that memo once it became public. Yet Yoo continued to defend it. Earlier, Yoo argued that Bush did not need to ask Congress for permission to invade Iraq. (American Progress Action, December 16, 2005)

An August 2002 OLC memo, signed by OLC’s top attorney Jay Bybee -- but drafted by Yoo -- gave the agency what it needed. The document defined torture so narrowly that, short of maiming or killing a prisoner, interrogators had a free hand. Additionally, the memo claimed license for Bush to order methods that would be torture by anyone’s definition. It allowed Bush to use such methods in a wholesale manner -- and not just in specific cases. (Newsweek, February 6, 2006)

In the summer of 2003, Yoo left the DOJ and to return to teaching law. His departure came in the midst of a critical power struggle. Addington and Gonzales had both wanted to make Yoo to head the OLC, since Bybee left to take a federal judgeship in March 2003. But Ashcroft did not want Yoo to fill that slot. The attorney general allegedly did not want to give the White House a private pipeline into the OLC. (Newsweek, February 6, 2006)

In October 2003, Goldsmith took over the OLC. His position was that the Fourth Geneva Convention -- which barred the use of physical, or moral coercion on prisoners held in a militarily occupied country -- applied to all Iraqis, even if they were suspected of belonging to Al Qaeda. (Newsweek, February 6, 2006)

Addington was appalled at Goldsmith’s position, and conflicts broke out between the two attorneys. Addington could not simply ignore the new head of the OLC. In December 2003, Goldsmith informed the Defense Department that Yoo’s March 2003 torture memo was “under review” and could no longer be relied upon. (Newsweek, February 6, 2006)

CONFRONTING ASHCROFT IN THE HOSPITAL. While Ashcroft was hospitalized with a serious pancreatic condition, Comey acted as attorney general. In March 2004, Ashcroft was about to give a press conference in Virginia but was so stricken with pain that he had to lie down on the floor. Taken to the hospital for an emergency gallbladder operation, he hallucinated under medication as was near death in intensive care. (Newsweek, June 4, 2007)

On the night after his operation, White House chief of staff Andrew Card and presidential counsel Alberto Gonzales went to the hospital to pressure Ashcroft to sign a document authorizing the government’s top-secret eavesdropping program to continue. Believing it was illegal, Ashcroft refused to sign the document. (Newsweek, June 4, 2007)

Testifying before the Senate Judiciary Committee four years later in May 2007, Comey told the committee that on the evening of March 10, 2004, hours before the authority for the spying program was set to expire, a top aide to Ashcroft alerted him that Gonzales and Card had arranged a visit with Ashcroft. Comey testified that he “ordered his driver to rush him to George Washington University Hospital with emergency lights flashing and a siren blaring to intercept the pair.” (New York Times, May 16, 2007)

Comey explained that Gonzales and White House Counsel Andrew Card attempted to persuade Ashcroft to overrule Comey, even as Ashcroft was debilitated in an intensive care unit with pancreatitis. (New York Times, May 16, 2007) Comey objected to aspects of the NSA’s domestic surveillance program. Comey refused to sign on to its continued use because of his concerns about its legality and oversight. Less than one year later, Comey resigned as deputy attorney general. (New York Times, January 1, 2006; Newsweek, February 6, 2006)

Comey said, “I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to that.” He described how he “literally ran up the stairs” to Ashcroft's room, and had FBI Director Mueller order the agents on Ashcroft’s security detail not to evict him from the room if Gonzales and Card objected to his presence. (Think Progress, May 15, 2007) Comey testified that he “arrived first in the darkened room, in time to brief Mr. Ashcroft, who he said seemed barely conscious. Minutes later, Gonzales and Card arrived, envelope in hand, and explained that they were seeking his approval to extend authority for warrantless spying. Comey said, “Attorney General Ashcroft then stunned me.” He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact.” (New York Times, May 16, 2007; Think Progress, May 15, 2007) <

Comey said Ashcroft laid his head back down on the pillow, seemed spent, and said to them, “But that doesn’t matter, because I’m not the attorney general.” However, the White House effort to overrule Comey failed. Shortly afterwards, a “very upset” Card called Comey who said he “demanded that I (Comey) come to the White House immediately.” Comey told Card that, after the conduct he had just witnessed, he would not meet with him without a witness present. Card apparently replied, “What conduct? We were just there to wish him well.” (Think Progress, May 15, 2007) <

Comey insisted on having Solicitor General Ted Olson accompany him to the White House. Comey said that Card “would not allow Mr. Olson to enter his office.” Comey was informed that White House officials (including Cheney and Cheney’s general counsel David Addington) wanted to continue the program. (Think Progress, May 15, 2007)

The next morning, March 11, the program was reauthorized “without a signature from the DOJ attesting as to its legality.” Comey had seen enough, and wrote up his resignation letter. He told the Senate committee, “I couldn’t stay, if the administration was going to engage in conduct that the Department of Justice had said had no legal basis. I just simply couldn’t stay.” (Think Progress, May 15, 2007)

Comey’s concerns prompted two of Bush’s senior aides -- Chief of Staff Andrew Card and White House counsel Alberto Gonzales -- to make an emergency visit to a Washington D.C. hospital in March 2004. They discussed the NSA’s domestic spy program. Hoping to win the needed approval from Ashcroft who was hospitalized for gallbladder surgery. (New York Times, January 1, 2006)

Goldsmith raised with Comey serious questions about the secret eavesdropping program, according to two sources familiar with the episode. Comey was joined by OLC lawyer Patrick Philbin, who had become national-security aide to the deputy attorney general. Comey told the Bush White House that they would not reauthorize the secret domestic espionage program. (Newsweek, February 6, 2006)

In March 2004, Bush’s warrantless domestic spying program was temporarily suspended after Comey refused to sign onto an extension of the program, citing an “extensive review” by the DOJ’s Office of Legal Counsel. He stated “that the program did not comply with the law.” (New York Times, May 16, 2007)

COMEY MEETS WITH BUSH. Comey was summoned to the White House to meet Bush. A compromise was reached that averted the spectacle of mass resignation by putting more legal controls on the eavesdropping program. However, when Bush met with FBI Director Mueller, the president agreed to take steps to bring the eavesdropping program back inside the boundaries of the law. (Newsweek, June 4, 2007)

The confrontation over the eavesdropping program created a schism between the White House and Ashcroft’s team at Justice. At the DOJ, attorneys were so furious that they threatened to resign. The group included the director of the FBI, Robert Mueller, Associate Attorney General Robert McCallum, and the chief of the Criminal Division, Chris Wray. One source estimated that as many as 30 top DOJ officials would have resigned. Within months, many of the top officials had resigned or started making plans to do so. (Newsweek, June 4, 2007)

Solicitor General Ted Olson was the first to go that summer. On Election Day 2004, Ashcroft personally wrote his letter of resignation, and Bush promptly tapped Gonzales to replace him. Comey announced his resignation the next summer. (Newsweek, June 4, 2007)

Testifying before the Senate committee, DOJ attorney Monica Goodling acknowledged that she may had improperly used political considerations to choose career prosecutors. She said, “I crossed the line,” but she refused to acknowledge that Gonzales might have crossed another line by discussing with her his account of how the United States attorneys were fired. The implication was that Gonzales had been subtly trying to coach her testimony. (Newsweek, June 4, 2007)

In June 2004, the crisis came to a head when the torture memo leaked. Goldsmith told Ashcroft that he was formally withdrawing the August 2002 torture memo. Ashcroft again backed his DOJ lawyers. Comey, with Goldsmith and Philbin, announced that the Justice Department was disavowing the August 2002 torture memo. (Newsweek, February 6, 2006)

In late 2004, Goldsmith left the Justice Department to teach at Harvard. In December, the OLC issued a new memo that contained a broader definition of torture and was far less expansive about the power of the president. It authorized coercive interrogation methods. The memo was written by senior DOJ lawyer Daniel Levin. (Newsweek, February 6, 2006)

Obviously protecting Bush, the Justice Department went through the motions to investigate the program. In January 2006, it announced that the inquiry was conducted by the Office of Professional Responsibility (OPR), which reviewed allegations of misconduct within the law enforcement agency. (Associated Press, February 15, 2006)

GONZALES TESTIFIES. In February 2006, Gonzales testified: “There has not been any serious disagreement” about the warrantless spying program conducted by the NSA. Three months later, former Deputy Attorney General Comey testified about the serious disagreement over the administration’s spying activities, explaining that numerous senior administration leaders -- including Comey, Ashcroft, and Mueller – were prepared to resign over it. (Washington Post, May 6, 2006; May 15, 2006)

However, one year later -- in June 2007 -- Gonzales claimed in a press conference that Comey’s testimony referred to the NSA program “which the president confirmed to the American people some time ago.” (Washington Post, June 5, 2007)

6. THE FBI AND SURVEILLANCE

Immediately after 9/11, the NSA began sending a steady stream of telephone numbers, e-mail addresses and names to the FBI in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month. (New York Times, January 17, 2006)

But virtually all of tips led to dead ends or innocent Americans. FBI officials repeatedly complained to NSA that the unfiltered information was swamping investigators. The spy agency was collecting much of the data by eavesdropping on some Americans’ international communications and conducting computer searches of phone and Internet traffic. Some FBI officials and prosecutors also thought the checks, which sometimes involved interviews by agents, were pointless intrusions on Americans’ privacy. (New York Times, January 17, 2006)

As the bureau was running down those leads, its director, Robert Mueller, raised concerns about the legal rationale for a program of eavesdropping without warrants, one government official said. Mueller asked senior administration officials about “whether the program had a proper legal foundation,” but deferred to Justice Department legal opinions. (New York Times, January 17, 2006)

More than a dozen law enforcement and counterterrorism officials, including some in the small circle who knew of the secret program and how it played out at the FBI, said the flood of tips led them to few potential terrorists inside the country they did not know. This diverted agents from counterterrorism work they viewed as more productive. (New York Times, January 17, 2006)

7. THE WHITE HOUSE DEFENDS ITS SURVEILLANCE PROGRAM

It was next to impossible to defend Bush’s secret espionage program.

1. Soon after 9/11, Vice President Cheney urged that the NSA intercept purely domestic telephone calls and e-mail messages without warrants in the hunt for terrorists. But NSA lawyers were reluctant to approve any eavesdropping without warrants. They insisted that it should be limited to communications into and out of the country. The NSA ultimately prevailed. (New York Times, May 14, 2006)

2. In July 2002, the Bush administration said it was the role of FISA to conduct domestic surveillance. James A. Baker, the Justice Department’s top lawyer on intelligence policy, testified to a Senate committee that a “significant review” would be needed to determine whether FISA’s legal requirements for obtaining warrants should be loosened because they hampered counterterrorism efforts. (Knight Ridder, January 26, 2006)

The Justice Department said it opposed a legislative proposal to change FISA to make it easier to obtain warrants that would allow the NSA to listen in on communications involving non-American citizens inside the United States. (Knight Ridder, January 26, 2006)

3. A 2003 White House memo undermined Bush’s position. The document described legislation drafted by Justice Department staff to expand surveillance powers under FISA. Therefore, why did Justice Department feel this change was needed -- when the story was leaked in late 2005 -- that the White House was engaged in domestic espionage? The Bush administration claimed at the end of 2005 that it had even broader authority and could avoid judicial review.

4. One year later -- on May 11, 2004 -- Bush spoke in Buffalo, New York where he undermined any need for pursuing more latitude in domestic espionage. He said, “Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order.” Yet the Bush administration went on the offensive in January 2006. High-level officials lashed out at critics who charged that the domestic surveillance program was illegal.

BUT … But only after the story of Bush’s domestic intelligence broke three years later in 2005, Attorney General Gonzales maintained. the program was put into place because FISA was unsuitable for modern times. On December 19, 2005, Gonzales said, “We don’t have the speed and agility we need in all circumstances, to deal with this new kind of enemy. You have to remember that FISA was passed by the Congress in 1978.” (White House Press Meeting, December 19, 2005)

Gonzales argued that the requirements of a secret intelligence court were too cumbersome for rapid pursuit of suspected terrorists. He stressed that the warrantless wiretapping did not violate the Constitution or federal law. (Washington Post, January 25, 2006)

Yet Baker earlier had argued that existing law met the administration’s needs. Baker wrote that modifications to FISA that were passed in the Patriot Act “enabled the government to become quicker, more flexible.” (Senate Committee on Intelligence, July 31, 2002)

Baker added, “Specifically, expanding the time between when the surveillance can start and when the government must obtain a warrant has allowed us to make full and effective use of FISA’s pre-existing emergency provisions to ensure the government acts quickly.” (Senate Committee on Intelligence, July 31, 2002)

After the story of Bush’s spy program broke in late 2005, Press Secretary McClellan found himself caught in verbal exchanges with members of the White House press corps. He refused to answer questions about the 72-hour time slot during which one could obtain a warrant. Instead, he resorted to scare tactics, suggesting that America could be attacked by terrorists. (MSNBC, January 25, 2006)

McClellan said, “Do you expect our commanders, in a time of war, to go to a court while they’re trying to surveil the enemy? I don’t think so. This is a time of war. This is about wartime surveillance of the enemy. That’s what this is about. And we don’t ask our commanders to go to the court and ask for approval while they’re trying to gain intelligence on the enemy.” (Washington Post, January 25, 2006)

Bush used the NSA headquarters in Maryland to thank its employees for their “crucial” efforts in the war on terrorism. He said Americans’ security depended on eavesdropping program. (Washington Post, January 25, 2006)

Many of the statements by high-level White House officials were flawed:

1. Cheney said, “If we’d had (the espionage program) before 9/11, it might have led us to be able to prevent 9/11.” This claim was false and sensational. The secret surveillance program authorized by Bush did not provide the government with any new capability. The government already had the capacity to read your mail and your e-mail and listen to your telephone conversations. All it had to do was obtain a warrant from a special court created for this purpose. The special FISA court never rejected a single warrant application. (American Progress Action, December 19, 2005)

Cheney said he supported the Bush administration’s success in restoring presidential powers that were stripped during the Richard Nixon era. He said the Watergate scandal and the Vietnam War wrongly eroded the executive power of the White House, something he and Bush had remedied during their war on terror. (New York Times, December 21, 2005)

2. Another claim made by members of the administration was that Bush needed “to skirt the normal process of obtaining court-approved search warrants for the surveillance because it was too cumbersome for fast-paced counterterrorism investigations.” This argument had several flaws. Government officials were able to get an emergency warrant from the secret court within hours, sometimes minutes, if they could show an imminent threat. More importantly, Section 1805 of the FISA Act stated that the government could begin a wiretap as soon as it determines a need and culd wait up to 72 hours before obtaining a warrant. The Bush administration did not seek to do that under the special program. (American Progress Action, December 19, 2005)

3. Secretary of State Rice defended the eavesdropping program by arguing that congressional leaders -- specifically leaders of the relevant oversight intelligence committees -- had been briefed on the NSA activities. This was not true. At the time the program was initiated, the Chairman of the Senate Intelligence Committee was Senator Bob Graham. On December 17, Graham made clear he had never been briefed by the administration about the program: “There was no reference made to the fact that we were going to ... begin unwarranted, illegal, and I think unconstitutional, eavesdropping on American citizens. (Nightline, December 16, 2005)

4. House Minority Leader Nancy Pelosi said she had been advised by Congresswoman Jane Harman, ranking Democrat on the House Intelligence Committee, that the Bush Administration reversed its decision to brief the full House Intelligence Committee on the details of the activities. (American Progress Action, December 16, 2005)

8. THE CIA’S SURVEILLANCE PROGRAM

Unlike the FBI, the military and the CIA did not have wide-ranging authority to seek records on Americans in intelligence investigations. But the expanded use of national security letters allowed the Pentagon and the intelligence agency to collect records on their own. Sometimes, military or CIA officials worked with the FBI to seek records. (New York Times, January 13, 2007)

The military and the CIA had long been restricted in their domestic intelligence operations, and both were barred from conducting traditional domestic law enforcement work. But Pentagon officials also sought to widen their intelligence capabilities. They defended their action as valuable tools and said they were part of a broader strategy since 9/11 to use more aggressive intelligence-gathering tactics (New York Times, January 13, 2007)

After 9/11, Rumsfeld directed military lawyers and intelligence officials to examine their legal authorities to collect intelligence both inside the United States and abroad. They concluded that the Pentagon had “way more” legal tools than it had been using. Subsequently, the Pentagon joined the FBI and CIA in tapping in on banking and credit records of hundreds of Americans and others suspected of terrorism or espionage inside the United States. In the past, banks, credit card companies, and other financial institutions usually turned over documents voluntarily, allowing investigators to examine the financial assets and transactions of American military personnel and civilians. (New York Times, January 13, 2007)

Government lawyers said the legal authority for the Pentagon and the CIA to use national security letters in gathering domestic records dates back nearly three decades and, by their reading, was strengthened by the USA Patriot Act. The act did not specifically mention military intelligence or CIA officials in connection with the national security letters. (New York Times, January 13, 2007)

9. CIA WHISTLE-BLOWER MARY MCCARTHY

The CIA’s deputy inspector general investigated allegations of criminal mistreatment by the agency and its contractors in Iraq and Afghanistan. In 2005, he concluded that the CIA did not engage in torture. (Washington Post, May 14, 2006)

But McCarthy was convinced that “CIA people had lied” not only because the agency had conducted abusive interrogations but also because its policies authorized treatment that she considered cruel, inhumane, or degrading. (Washington Post, May 14, 2006)

After serving just 18 months, Goss was pressured to leave his post in the spring of 2006. His resignation came amidst a time when the CIA was functioning -- or malfunctioning -- at its lowest point since its inception in 1947.

In a power struggle, Goss lost out to Bush-protégé John Negroponte, head of national intelligence, who reportedly had made it clear that he was in charge. Negroponte had been notorious, when he was ambassador to Honduras in the 1980s, for his direct or indirect involvement in the country’s death squads that had murdered thousands of civilians.

The CIA had lost its credibility as a result of its bumbling of intelligence before and during the Iraq war. Moreover, Rumsfeld and the Defense Department were involved in a power struggle with the CIA over which agency should control dominance over intelligence gathering.

General Michael Hayden, head of the NSA, was picked by Bush to fill Goss’ slot. Immediately, Hayden was hit with criticism from both sides of the aisle. Some Republicans called him the “wrong person, the wrong place, at the wrong time.” Others on Capitol Hill criticized the choice to head the civilian CIA with a military person. (New York Times, May 7, 2006)

Hayden’s appointment came at a time when the NSA was chastised for its illegal activities of intelligence spying -- without proper warrants as specified under the Fourth Amendment -- on United States citizens. On January 23, 2006, Hayden suggested that the Bush administration seek alternative ways to spy on American citizens, after it was revealed that the White House had circumvented FISA laws. He said he was knowledgeable on the Fourth Amendment: “Believe me, if there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth.”(The Carpetbagger Report, January 24, 2006)

10. CIA DIRECTOR GOSS IS OUT – NSA DIRECTOR HAYDEN IS IN

After serving just 18 months, CIA Director Porter Goss was pressured to leave his post in the spring of 2006. His resignation came amidst a time when the CIA was functioning -- or malfunctioning -- at its lowest point since its inception in 1947.

In a power struggle, Goss lost out to Bush-protégé John Negroponte, head of national intelligence, who reportedly had made it clear that he was in charge. Negroponte had been notorious, when he was ambassador to Honduras in the 1980s, for his direct or indirect involvement in the country’s death squads that had murdered thousands of civilians.

The CIA lost its credibility -- whatever was left of it -- as a result of its bumbling of intelligence before and during the Iraq war. Moreover, Rumsfeld and the Defense Department were involved in a power struggle with the CIA over which agency should control dominance over intelligence gathering.

General Michael Hayden, head of the NSA, was picked by Bush to fill Goss’ slot. Immediately, Hayden was hit with criticism from both sides of the aisle. Some Republicans called him the “wrong person, the wrong place, at the wrong time.” Others on Capitol Hill criticized the choice to head the civilian CIA with a military person. (New York Times, May 7, 2006)

Hayden’s appointment came at a time when the NSA was chastised for its illegal activities of intelligence spying -- without proper warrants as specified under the Fourth Amendment -- on United States citizens. On January 23, 2006, Hayden suggested that the Bush administration seek alternative ways to spy on American citizens, after it was revealed that the White House had circumvented FISA laws. He said he was knowledgeable on the Fourth Amendment: “Believe me, if there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth.”(The Carpetbagger Report, January 24, 2006)

11. CHARGES OF CORRUPTION: CIA OFFICIAL KYLE FOGGO

Kyle Foggo was a 25-year veteran of the CIA, serving as executive director and its third ranking official. He received the Intelligence Commendation Medal for supporting the war on terror in 2002. Before becoming the agency’s third ranking leader in 2004, Foggo was the chief of base at a classified facility that supported the war on terror. (New York Times, May 12, 2006)

Just prior to his retirement in the spring of 2006, an investigation was launched by the FBI, IRS, Defense Criminal Investigative Service, the CIA’s inspector general, and the United States attorney’s office in San Diego. (New York Times, May 12, 2006)

The FBI and other agencies investigated whether Foggo improperly intervened in the award of contracts to a San Diego businessman and personal friend, Brent Wilkes, who had been implicated in a congressional bribery scandal. Wilkes was an unindicted co-conspirator in a plot to bribe Congressman Randy “Duke” Cunningham who was later convicted for receiving $2.4 million in bribes from government contractors. (New York Times, May 12, 2006)

FBI agents also investigated whether Wilkes provided Cunningham with prostitutes, limousines, and hotel suites. Foggo acknowledged participating in the poker parties at the hotel rooms, but he said there was nothing untoward about that. (New York Times, May 12, 2006)

12. INVESTIGATING BUSH’S ESPIONAGE PROGRAM

1. BUSH BLOCKS AN INVESTIGATION. In early 2006, the Bush administration blocked an investigation into the espionage program, rejecting the request to have Attorney General Ashcroft and other officials testify about its legality. (Washington Post, February 17, 2006) But that did not detain other segments of the government to proceed with an inquiry.

In addition, the White House rejected a call by more than one dozen House Democrats for a special counsel to investigate the eavesdropping program. Instead, Bush gained the support of Republicans on Capitol Hill to limit an inquiry into the espionage program. (New York Times, March 1, 2006)

The GOP-controlled Senate Select Committee on Intelligence sided with the president. The committee voted along party lines to reject a Democratic proposal to investigate the surveillance program and instead approved establishing, with White House approval, a seven-member panel to oversee the effort. (Washington Post, March 7, 2006)

2. THE CONGRESSIONAL RESEARCH SERVICE’S REPORT. In January 2006, the Congressional Research Service (CRS) concluded that the Bush administration’s justification for the warrantless eavesdropping conflicted with existing law and hinged on weak legal arguments. The nonpartisan 44-page assessment rebutted the central assertions made by Bush and Attorney General Gonzales about the president’s authority to order secret intercepts between people inside the United States and their contacts abroad. (Washington Post, January 7, 2006)

The report said that Bush probably could not claim the broad presidential powers he had relied upon as authority to order the secret monitoring of calls. The CRS also said that Congress expressly intended for the government to seek warrants from FISA. (Washington Post, January 7, 2006)

The CRS report concluded that Bush’s assertion that Congress authorized such eavesdropping to detect and fight terrorists did not appear to be supported by the special resolution that Congress approved after 9/11. (Washington Post, January 7, 2006)

3. THE SENATE JUDICIARY COMMITTEE. Attorney General Gonzales was not even required to testify under oath before appearing before the Senate Judiciary Committee. While testifying, he ducked, bobbed, and weaved his way through a series of aggressive questions.

Gonzales failed to explain a rationale for why the administration could not use the legal wiretapping procedure established by FISA. He argued that the espionage program was “consistent with our laws and Constitution.” (New York Times, February 6, 2006)

4. THE JOINT SELECT INTELLIGENCE COMMITTEE. CIA Director Hayden misled the Joint Select Intelligence Committee in sworn testimony. He said that any surveillance of persons in the United States -- including surveillance related to known terrorists -- was carried out consistent with FISA regulations. (www.thinkprogress.com, May 18, 2006)

13. SECRET TESTING FOR RADIATION

After 9/11, federal agents secretly tested radiation levels across the United States. The program lasted two years -- beginning shortly after the World Trade Center attack and continuing until the end of 2003. (Washington Post, December 29, 2005)

The clandestine program included testing more than 100 Muslim sites in the Washington D.C. area. One official explained that Muslim sites were included because Al Qaeda terrorists were considered likely to enter Muslim neighborhoods or mosques while in the United States. The federal government insisted that no one was targeted because of his or her faith. (Washington Post, December 29, 2005)

The federal government claimed that no indications of radiation were found at the businesses, homes, warehouses, or mosques that were included in the program. (Washington Post, December 29, 2005)