Did The NSA Wiretap the Press in Iraq?
Mon Dec 10, 2007 at 08:00:15 AM PDT
I am returning to Friday's speech by Sheldon Whitehouse (video here), in which he excoriated the Bush Administration for their egregiously unconstitutional legal justification for the Warrantless Wiretapping Program. The diary to follow is pure speculation, but I believe that there are several clues indicating that one of the key controversies of the Bush Administration's Wiretapping program will turn out to be the fact that this Administration conducted warrantless monitoring of the communications of American Citizens working overseas. This group certainly includes contractors and servicemen and women in Iraq, citizens working for NGOs, and importantly, the Press.
Sheldon Whitehouse's Speech
The first point I would like to make is that Sheldon Whitehouse evaluated the legal justification of the Warrantless Wiretapping program, and made a point in Friday's speech of illustrating why the August 2007 FISA update (Protect America Act) fails to protect Civil Liberties:
Let's start with number one. Bear in mind that the so-called Protect America Act that was stampeded through this great body in August provides no - zero - statutory protections for Americans traveling abroad from government wiretapping. None if you're a businesswoman traveling on business overseas, none if you're a father taking the kids to the Caribbean, none if you're visiting uncles or aunts in Italy or Ireland, none even if you're a soldier in the uniform of the United States posted overseas. The Bush Administration provided in that hastily-passed law no statutory restrictions on their ability to wiretap you at will, to tap your cell phone, your e-mail, whatever.
Considering the vast number of American press, servicemen, contractors, and NGO affiliated citizens in the Iraq and Afghanistan theaters, the latter example cited above may be close to historical fact.
The FISA Loophole and Executive Order 12333
Whitehouse next discusses executive order 12333:
The only restriction is an executive order called 12333, which limits executive branch surveillance to Americans who the Attorney General determines to be agents of a foreign power. That's what the executive order says.
Marty Ledermen at Balkinization outlines the importance of Executive Order 12333:
Nevertheless, there does appear to be an outrage here. Apparently -- and this is real news of the Whitehouse statement -- the President decided to secretly ignore Executive Order 12333, which, among other things, has long been the only real source (other than Fourth Amendment) of legal protection of the privacy rights of U.S. persons overseas vis-a-vis surveillance by the federal government. This is a gap in FISA that the 1978 Congress said it would get around to closing -- but it never did. And so the only thing standing between U.S. persons overseas and their own government snooping on them has been E.O. 12333.
Here is what 12333 says:
2.5 ATTORNEY GENERAL APPROVAL
The Attorney General hereby is delegated the power to approve the
use for intelligence purposes, within the United States or against
a United States person abroad, of any technique for which a warrant
would be required if undertaken for law enforcement purposes,
provided that such techniques shall not be undertaken unless the
Attorney General has determined in each case that there is probable
cause to believe that the technique is directed against a foreign
power or an agent of a foreign power. Electronic surveillance, as
defined in the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.), shall be conducted in accordance with that
Act, as well as this Order.
In other words, 12333 tells all Americans that they will not be wiretapped unless the Attorney General has determined them to be an agent of a Foreign Power. However the secret OLC memos discovered by Whitehouse shows that the Administration considered 12333 irrelevant. From Whitehouse's transcription of the Secret OLC Memo:
An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
The Episode that provoked the Summer 2007 FISA update Crisis
The Final piece of the puzzle I'd like to call attention to today is the surveillance episode that provoked the August 2007 FISA update "emergency".
Prior to January of 2007, The Bush Administration was largely cirvcumventing the FISA court. On January 17, 2007, AG Gonzales sent a letter (PDF here) to Patrick Leahy and Arlen Specter announcing quietly that the Terrorist Surveillance Program would be submitted to FISA Courts for review. Thereafter, there were several rulings against them.
On 9/18/07 Director of National Intelligence Michael McConnell testified to HJC about an incident in May 2007 in which American Troops were "endangered by pre-update FISA rules." He testified that the necessity of obtaining a warrant under pre-update FISA law delayed initiation of surveillance of Iraqi Terrorists who had kidnapped American troops.
The incident cited is the May 12, 2007 ambush and abduction of US troops. It is unclear why a warrant would be required for surveillance of foreign terrorists under FISA, and this was never satisfactorily explained.
Whatever the requirement for warrant, DOJ delayed the warrant application for at least 12 hours in debate and tracking down AG Gonzales to obtain authorization for the FISA request.
If one considers that investigation of the Ambush might have wanted to evaluate communications of American Press in Iraq (who might be contacted by terror groups), or perhaps to target other Soldiers or contractors suspected of complicity, then the need for a warrant is evident.
Summary
I am unsure of a serviceman's rights to privacy abroad in a time of war, but I wonder whether they are aware that when EO 12333 is ignored, all of their communications can be monitored. I similarly wonder whether American Contractors and Citizens working for NGOs and in other capacities abroad have any expectation of civil rights. Finally, I wonder what members of the Press working abroad think about the fact that The Bush Administration believes they can wiretap their communications without warrants?
As Sheldon Whitehouse outlined, with the Protect America Act and Bush ignoring EO 12333, privacy protections for Americans traveling abroad are suspended. Our country is blessed with a Constitution, the purpose of which is to protect us from Tyrants. It is time to step up and remind our fellow citizens of its existence.
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