First of all, there was no secret. The facts have been in the public domain for a decade.
I am sick of hearing the shock and consternation hitting the media when they have (or should have) known all along.
Bush authorized warrantless NSA wiretapping in October 2001. However, Joseph Nacchio former CEO of Qwest convicted April 19, 2007 of insider trading reported that the NSA in a meeting on February 27, 2001 (1 month after Bush became President and 6 1/2 months before 9/11) tried to sign Qwest up to a warrantless surveillance program and that when Nacchio refused the NSA pulled hundreds of millions of dollars worth of contracts from the company.
The entire history of getting to where we are today has been documented by the
"HUGH Has a List" website.
number 12 on Bush's Scandals List
The post-9/11 Bush program acquired its legal basis from a John Yoo memo originating in the DOJ’s Office of Legal Counsel (OLC). It went much further than cutting FISA out of the loop and probably included surveillance of both international and domestic communications of targets generated from datamining NSA databases as well as their contacts and the contacts of those contacts in ever expanding and less relevant circles. While incredibly intrusive and in violation of Fourth Amendment protections, this operation was to all intents and purposes worthless.
It has been suggested that what the NSA was using in its surveillance was a program called Main Core, a searchable database of databases. It is rumored to contain data on 8 million Americans deemed suspicious (yes, I don’t know what that means either) who in case of national emergency would be subject to anything from arrest to heightened surveillance. It may have been this massive warrantless surveillance, real or potential, of huge numbers of Americans that troubled some, like James Comey and Jack Goldsmith, at the DOJ. It screamed lack of probable cause and smacked too closely of being an enemies list, only a lot bigger.
In addition to this, the Administration appeared intent on exploiting the 1994 Communications Assistance for Law Enforcement Act (CALEA) to expand the scope of its surveillance. This act requires telecoms to configure their equipment to facilitate governmental wiretapping. While the act was not envisioned as a means of large scale warrantless wiretapping, it could with the help of service providers like the telecoms be turned into one. Supporting this view is that on March 10, 2004, the DOJ, FBI, and DEA (Drug Enforcement Administration) petitioned the FCC to extend CALEA to the internet (see item 252). This action coming as it did on the same day as the Ashcroft hospital visit (described below) may have been an effort to expand or acquire additional cover for a data mining program like Main Core that was already in operation.
In a scheme apparently orchestrated by Vice President Cheney, Bush called Mrs. Ashcroft and Cheney "on the President’s behalf" ordered then White House Counsel Alberto Gonzales and Chief of Staff Andrew Card to go to the hospital and get the ailing and doped up Ashcroft to sign off on the surveillance program.
A threat by Ashcroft, Comey, and Mueller to resign did, however, result in changes to the program. The OLC came up with a narrower justification under the AUMF for a more limited program which became the TSP (Terrorist Surveillance Program). It should be noted that this program in all of its manifestations and despite its various justifications has been illegal on its face since its inception.
The program became public when the New York Times reported on it in December 2005. In 2006 various unsuccessful attempts were made to accommodate the program. This included the infamous attempted "compromise" by Arlen Specter to legalize its worst excesses and retroactively amnesty any illegalities. Under mounting pressure and with a new Democratic Congress, Alberto Gonzales announced on January 18, 2007, a "deal" with the FISA court which would put the program under its supervision. Gonzales maintained, however, that Bush still had Article II power to go outside the court if he wanted to.
Despite previous abuses, April 10, 2007 intelligence czar DNI John "Mike" McConnell (not to be confused with Senate Minority leader Mitch McConnell) proposes allowing NSA to conduct domestic surveillance of foreign nationals completely outside of FISA, extend from 3 days to one week surveillance without seeking FISA permission "in emergency situations," immunize telecoms, and extend FISA warrants from 120 days to one year. McConnell has a large conflict of interest in the immunization of telecoms issue. Like too many others, McConnell has benefited from the revolving door between government and private enterprise. He has been director of defense programs at Booz Allen Hamilton a large defense and intelligence firm with CIA and NSA consulting contracts and chairman of the Intelligence and National Security Alliance, the primary business association for NSA and CIA contractors. In short, he has intimate connections to precisely those corporate players most closely involved in promoting the use of telecoms in intelligence gathering and with the greatest vested interest in keeping this arrangement going .
No, immunity is not about protecting the telecoms (they don’t need it) but rather squelching civil lawsuits which if allowed to proceed could expose the extent of this government’s spying on its own citizens. This isn’t about national security. It is about CYA.
The text of the 114 page bill was made available to lawmakers less than 24 hours before the vote, meaning that almost no Representative actually read the bill before voting on it. No amendments were allowed, and only one hour was given for debate.
The bill granted effective retroactive immunity to telecoms in a particularly cowardly way, not by Congressional action but by shifting responsibility to the federal district court level. All that was required was that the telecoms show they had received an OK from the President. There was no requirement that they demonstrate that they thought that the President’s request was lawful or that they (with their large legal departments) made any effort to assess its legality. This would end current lawsuits against telecoms which seek to learn what kind of spying the government was doing on its own citizens.
On October 9, 2008, ABCNews came out with a story (first reported on by Amy Goodman on May 13, 2008) in which whistleblowing military communications operators admitted that they had listened routinely in on phone calls of ordinary Americans overseas, that they had recorded and transcribed them, and in some cases passed them around to colleagues to gossip about and make fun of. This directly contradicted statements by George Bush and former NSA head and current CIA Director Michael Hayden that warrantless wiretapping was only directed against foreign terrorists.