December 18, 2005
Like Nixon, Volume II

Barton Gellman and Dafna Linzer continue the Post’s investigation into decisions by the Bush administration, especially Vice President Cheney, to employ illegal methods of surveillance.

In his four-year campaign against al Qaeda, President Bush has turned the U.S. national security apparatus inward to secretly collect information on American citizens on a scale unmatched since the intelligence reforms of the 1970s.

Indeed. Another example of the similarities between Bush and Nixon. It’s not as if these blatant violations of law are a new thing for the Imperial Presidency. Nixon and Kissinger were trying to appropriate to the office of the President all the power they could find, bypassing Congress by ignoring it.

Bush said yesterday that the lawfulness of his directives was affirmed by the attorney general and White House counsel, a list that omitted the legislative and judicial branches of government. On occasion the Bush administration has explicitly rejected the authority of courts and Congress to impose boundaries on the power of the commander in chief, describing the president’s war-making powers in legal briefs as “plenary” — a term defined as “full,” “complete,” and “absolute.”

As Tim Weiner of the New York Times wrote in his book Blank Check:

The NSA has also spent a great deal of time and money spying on American citizens. For twenty-one years after its inception it tracked every telegram and telex in and out of the United States, and monitored the telephone conversations of the politically suspect.

Nixon tried to implement plans similar in style, and illegality, to the one recently outed by the Times.

The Huston Plan, formally known as “Domestic Intelligence Gathering Plan: Analysis and Strategy,” was submitted in July 1970 to President Nixon. The goal of the plan was to relax some restrictions on intelligence gathering, apparently those of NSCID No.6.

Some parts of the intelligence community felt that these relaxations would assist their efforts. The proposals included:

  • allowing NSA to monitor “communications of U.S. citizens using international facilities” (presumably facilities located in the U.S., since NSA already had authority to monitor such communications if at least one terminal was outside U.S. territory)
  • intensifying “coverage of individuals and groups in the United States who pose a major threat to the internal security”
  • modifying restrictions “to permit selective use of [surreptitious entry] against other urgent and high priority internal security targets” as well as to procure “vitally needed foreign cryptographic material,” which would have required the FBI to accept warrantless requests for such entries from other agencies (“Rationale: Use of this technique is clearly illegal: it amounts to burglary. It is also highly risky and could result in great embarrassment if exposed. However, it is also the most fruitful tool and can produce the type of intelligence which cannot be obtained in any other fashion.”)

President Nixon approved this plan over the objection of J. Edgar Hoover and without the knowledge of Attorney General Mitchell.

The President can say what he likes:

No president before Bush mounted a frontal challenge to Congress’s authority to limit espionage against Americans. In a Sept. 25, 2002, brief signed by then-Attorney General John D. Ashcroft, the Justice Department asserted “the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority.”

But that doesn’t make it true. In fact, the Founders, so revered by the right-wing judges who call themselves Originalists, were clearly worried about the gathering of power into the hands of an executive, which is why they included checks and balances in the Constitution.

Fortunately, there are still some citizens uncowed by threats from the Rove machine, and willing to speak the truth, if only to reporters:

By law, according to University of Chicago scholar Geoffrey Stone, the differences are fundamental: Americans have constitutional protections that are enforceable in court whether their conversations are domestic or international.

Bush’s assertion that eavesdropping takes place only on U.S. calls to overseas phones, Stone said, “is no different, as far as the law is concerned, from saying we only do it on Tuesdays.”

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Posted by Chuck Dupree at December 18, 2005 04:24 AM
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Many are down on Bush but I think many other countries spy as well, they have just not been caught yet. Is Bush the only Head of State to sanction spying? I believe not, and most likely you feel the same way. The recent spy case in Ireland has the reported ex-head of a major political faction on the run and in hiding, fearing for his life. Russia’s’ government is stacked with former KGB officers, Israel has been accused of bugging embassies in America, now there is evidence Britain may have spied on the Irish political party Sinn Fein. Is spying a necessity in today’s world?
Raymond B
www.voteswagon.com

Posted by: Raymond B on December 18, 2005 9:20 AM

I wonder if Bush's so called plenary power includes the ability to avoid impeachment. We don't live in those other countries. This blog has an international audience. Therefore, shall we assume it's being monitored? Sadly, yes.

Posted by: tstreet on December 18, 2005 10:44 AM

Time to ACT! I'm cross-posting this*. If you can, take a minute to write a letter to the editor of your local or national paper. This Dem website makes it easy:

http://www.democrats.org/page/speakout/letterstoeditors

And we still don't know why the NYT kept this story quiet for ONE YEAR. Were they cooperating, or co-opted by the Bush Crime Family? The NYT "Reader Representative" is at:

http://topics.nytimes.com/top/opinion/thepubliceditor/index.html

E-mail him at: public@nytimes.com

*hope that's ok netequite.

Posted by: TJ on December 18, 2005 3:00 PM

Of course other countries spy as well, though I would submit that this doesn't make it okay for us to do so. As McCain says about torture, It's not about who they are, it's about who we are.

But the real points are:

  • There was already a legal way for the NSA to spy on Americans. As the New York Times said in an editorial today:
  • The intelligence agency 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 burden of proof for obtaining a warrant was relaxed a bit after 9/11, but even before the attacks the court hardly ever rejected requests.

  • What TJ said: the Times sat on this story for a year, which conveniently happened to put the revelation after, rather than before, Bush's last accountability moment.
Posted by: Chuck Dupree (Belisarius) on December 18, 2005 6:59 PM
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