National Security

Published — January 30, 2006

Draft legislation undercuts Bush domestic spying rationale

Introduction

A Justice Department memo written in 2003 may call into question the legal rationale the Bush administration has offered to justify electronic surveillance of Americans without court review.

Some critics of the ongoing National Security Agency (NSA) wiretapping program believe the 2003 memo undermines the position President Bush is taking today. The memo describes legislation drafted by Justice Department staff to expand surveillance powers under the Foreign Intelligence Surveillance Act (FISA).

Critics say it is hard to understand why Justice Department attorneys felt this change was needed, if, as the administration now claims, it had even broader authority and could avoid judicial review. In recent days, the administration has said the inherent constitutional powers of the president and the congressional authorization of military force against al Qaeda gave President Bush the authority he needed to circumvent the court.

The memo and proposed Domestic Security Enhancement Act of 2003, dubbed “Patriot II,” were first obtained and posted on the Center for Public Integrity website in February 2003.

A public firestorm

Once made public, the proposal raised a firestorm of criticism among civil liberties advocates. They were concerned about attempts to broaden the government’s powers over domestic intelligence gathering, and to decrease judicial review and public access to information.

Following its disclosure, the executive branch dropped consideration of “Patriot II,” and never presented it to Congress. However, pieces were later considered and passed.

One “Patriot II” provision, which never passed, would have sought expanded wartime powers for the Attorney General. Under the heading, “Section 103. Strengthening Wartime Authorities Under FISA,” the memo explains that current law authorizes surveillance for 15 days without court approval, once Congress has declared war.

But as formally declared wars are rare, the most recent being World War II, the Justice Department memo concludes, “this wartime exception is unnecessarily narrow.” The proposed law sought to broaden powers “by allowing the wartime exception to be invoked after Congress authorizes the use of military force, or after the United States has suffered an attack creating a national emergency.”

“After-the-fact rationalization…”

Georgetown law professor David Cole, a critic of the NSA surveillance program, says this 2003 draft is evidence that the government’s current argument “is in fact an after-the-fact rationalization, and not one that the administration held when the president secretly authorized the NSA warrantless wiretapping now at issue.”

The Republican staff director and chief counsel for the Senate Select Committee on Intelligence, William Duhnke, disagrees. He says proposed legislation such as “Patriot II” cannot be read as a concession that the president lacks certain powers.

“Just because the administration seeks legislation doesn’t mean you are acknowledging you don’t have certain inherent authority,” he says. “People may say, ‘now see, they were asking for it, so they know they didn’t have it.’ But that’s not true.”

“People may say, ‘now see, they were asking for it, so they know they didn’t have it.’ But that’s not true.” — William Duhnke, Republican staff director and chief counsel, Senate Select Committee on Intelligence.

But he says the law may have been drafted in an effort to strengthen powers, in line with a Supreme Court ruling that says a president’s authority is at its zenith when he acts in concert with congressional approval.

The “Patriot II” proposals would also have made it easier for the government to obtain lists of phone numbers dialed by Americans.

In addition, it would have granted a broad defense for federal agents acting on directives from the president or attorney general but lacking court authorization.

“This proposal would have provided immunity for those people,” says Brittany Benowitz, an attorney for the Center for National Security Studies, and “is therefore indicative of the danger inherent in relying on arguments of constitutional authority.”

A University of Virginia law professor who defends the legality of the NSA program believes as a practical matter, the passage of “Patriot II” might have smoothed the way.

“If Congress were to accept these changes, the risk that the administration would be distracted by ACLU lawsuits or nasty editorials would be reduced — presumably a good thing during wartime,” says Professor Robert F. Turner, an expert in national security law.

A spokesman for the administration says the significance of “Patriot II” is “a hypothetical” because the draft was never presented to Congress.

“The department as it develops policy often comes up with a number of different drafts and in this case it was merely a draft document that was not put forth for any consideration,” says Department of Justice spokesman Brian Roehrkasse.

“Control Sheet” shows memo directed to Cheney

“This has gone on for four years. (The administration had decided) if the law doesn’t suit our needs, we won’t follow it.” — Jim Dempsey, policy director of the Center for Democracy and Technology.

However, in 2003, Center for Public Integrity executive director Roberta Baskin, then a reporter for PBS, obtained this Office of Legislative Affairs “control sheet,” which appears to demonstrate the legislative proposal was delivered to Vice President Dick Cheney and Speaker of the House Dennis Hastert.

“Attached for your review and comment is a draft legislative proposal entitled the ‘Domestic Security Enhancement Act of 2003,’ reads the memo from “OLP,” the Office of Legal Policy. At the time this was disclosed, Barbara Comstock, then spokesman for Justice Department, denied that these documents were ever sent to Cheney or Hastert.

The law known as FISA was passed by Congress in 1978 to prevent a repeat of the abuses under the Nixon administration, which had spied on antiwar protesters and other political dissidents. The law established the FISA court as a safeguard, creating a level of review of surveillance on Americans.

The New York Times has reported that leads developed through NSA spying on phone calls and emails have proved, upon further scrutiny by the FBI, to be dead ends or the communications of innocent Americans.

The powers the Bush administration now claims to have are far more sweeping than what was sought in “Patriot II” in 2003. That proposal would have maintained a requirement for court approval, even in wartime, with an exception for the first 15 days after military action is authorized.

In recent days, President Bush and members of his administration have told the public they do not need court approval, at any time, for the surveillance program as long as the war against al Qaeda continues.

“This has gone on for four years,” says Jim Dempsey, policy director of the Center for Democracy and Technology. The administration had decided, he says “if the law doesn’t suit our needs, we won’t follow it. The president was invoking the legislative process, but at the same time ignoring the legislative process.”

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