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, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation. (emphasis mine)
All this time Bush and his supporters have been saying the Patriot Act does not infringe on the privacy of citizens. Turns out they were right: they didn’t need Patriot Act to do it, they have a secret executive order.
To add insult to injury, a mechanism is already in place to obtain warrants for conducting this type of surveillance. Bush & Co. just couldn’t be bothered to go through the trouble:
The standard of proof required to obtain a warrant from the Foreign Intelligence Surveillance Court is generally considered lower than that required for a criminal warrant – intelligence officials only have to show probable cause that someone may be “an agent of a foreign power,” which includes international terrorist groups – and the secret court has turned down only a small number of requests over the years. In 2004, according to the Justice Department, 1,754 warrants were approved. And the Foreign Intelligence Surveillance Court can grant emergency approval for wiretaps within hours, officials say.
Finally, as should be expected with this administration, there has been little internal check on the NSA?s new powers:
Several senior government officials say that when the special operation began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. (emphasis mine)
Only when the Times began sniffing around, and after a judge presiding over the Foreign Intelligence Surveillance Court questioned its tactics, did the NSA reevaluate the program:
A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said. The judge questioned whether information obtained under the N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap warrant requests from the Justice Department, according to senior government officials.
The NY Times held off on the story for a year, doing “additional reporting,” after administration officials asked the newspaper to drop it. I?m glad it is finally coming out, right before the Patriot Act reauthorization hits the Senate. Hopefully, the folks there will finally understand how abusive these new powers, and ones like them outlined in the Patriot Act, are to Americans.