Analysis

Pushing the Limits Of Wartime Powers

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By Barton Gellman and Dafna Linzer
Washington Post Staff Writers
Sunday, December 18, 2005

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.

The president's emphatic defense yesterday of warrantless eavesdropping on U.S. citizens and residents marked the third time in as many months that the White House has been obliged to defend a departure from previous restraints on domestic surveillance. In each case, the Bush administration concealed the program's dimensions or existence from the public and from most members of Congress.

Since October, news accounts have disclosed a burgeoning Pentagon campaign for "detecting, identifying and engaging" internal enemies that included a database with information on peace protesters. A debate has roiled over the FBI's use of national security letters to obtain secret access to the personal records of tens of thousands of Americans. And now come revelations of the National Security Agency's interception of telephone calls and e-mails from the United States -- without notice to the federal court that has held jurisdiction over domestic spying since 1978.

Defiant in the face of criticism, the Bush administration has portrayed each surveillance initiative as a defense of American freedom. Bush said yesterday that his NSA eavesdropping directives were "critical to saving American lives" and "consistent with U.S. law and the Constitution." After years of portraying an offensive waged largely overseas, Bush justified the internal surveillance with new emphasis on "the home front" and the need to hunt down "terrorists here at home."

Bush's constitutional argument, in the eyes of some legal scholars and previous White House advisers, relies on extraordinary claims of presidential war-making power. 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."

A high-ranking intelligence official with firsthand knowledge said in an interview yesterday that Vice President Cheney, then-Director of Central Intelligence George J. Tenet and Michael V. Hayden, then a lieutenant general and director of the National Security Agency, briefed four key members of Congress about the NSA's new domestic surveillance on Oct. 25, 2001, and Nov. 14, 2001, shortly after Bush signed a highly classified directive that eliminated some restrictions on eavesdropping against U.S. citizens and permanent residents.

In describing the briefings, administration officials made clear that Cheney was announcing a decision, not asking permission from Congress. How much the legislators learned is in dispute.

Former senator Bob Graham (D-Fla.), who chaired the Senate intelligence committee and is the only participant thus far to describe the meetings extensively and on the record, said in interviews Friday night and yesterday that he remembers "no discussion about expanding [NSA eavesdropping] to include conversations of U.S. citizens or conversations that originated or ended in the United States" -- and no mention of the president's intent to bypass the Foreign Intelligence Surveillance Court.

"I came out of the room with the full sense that we were dealing with a change in technology but not policy," Graham said, with new opportunities to intercept overseas calls that passed through U.S. switches. He believed eavesdropping would continue to be limited to "calls that initiated outside the United States, had a destination outside the United States but that transferred through a U.S.-based communications system."

Graham said the latest disclosures suggest that the president decided to go "beyond foreign communications to using this as a pretext for listening to U.S. citizens' communications. There was no discussion of anything like that in the meeting with Cheney."

The high-ranking intelligence official, who spoke with White House permission but said he was not authorized to be identified by name, said Graham is "misremembering the briefings," which in fact were "very, very comprehensive." The official declined to describe any of the substance of the meetings, but said they were intended "to make sure the Hill knows this program in its entirety, in order to never, ever be faced with the circumstance that someone says, 'I was briefed on this but I had no idea that -- ' and you can fill in the rest."

By Graham's account, the official said, "it appears that we held a briefing to say that nothing is different . . . . Why would we have a meeting in the vice president's office to talk about a change and then tell the members of Congress there is no change?"


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