George W. Bush Tried To Retroactively Declare Illegal, Unconstitutional NSA Surveillance Legal, Because He Said So

from the secret-laws,-secret-interpretations dept

When it comes to the NSA, we’ve been discussing just how dangerous it is when the government gets to put in place its own secret interpretation of laws that, when read by the public, appear to say something quite different than the secret interpretation. Otherwise you have secret laws, and that’s no way to run an open Constitutional democracy. For many years, it’s been known that in March of 2004 there was a hospital room showdown between then White House Counsel Alberto Gonzales (with White House Chief of Staff Andy Card) and (at the time, quite ill) Attorney General John Ashcroft and acting Attorney General James Comey, over whether or not to reauthorize some sort of surveillance program. Comey, Ashcroft, and then FBI Director Robert Mueller all threatened to resign over the issue, and eventually, we were told, President Bush overruled Gonzales and Card. We knew at the time that the dispute was over domestic surveillance and whether or not it was legal. More recently, it came out that it was over domestic collection of internet/email metadata. This was a program similar to the phone metadata program that was revealed by Ed Snowden, but for email/internet information.

However, in response to a FOIA lawsuit filed by the NY Times, late on Friday, the government declassified some more information about what happened, and it appears that George W. Bush tried to first retroactively “legalize” this pretty clearly unconstitutional domestic surveillance, by saying that he’d always meant that while the NSA could sweep up all metadata, it didn’t technically “acquire” it until it did a search on it. Again, this is in direct contrast to what most people thought the law (and the 4th Amendment) says the government could do.

This happened on March 11th, the day after the hospital showdown. President Bush signed a new authorization for the mass surveillance of internet records, but first decided that the White House Counsel, Gonzales, could certify it by himself, rather than having the Attorney General sign it, as in the past. This new authorization, though, directly claims that the President can simply override the law, including the Foreign Intelligence Surveillance Act, which was put in place to limit the Executive Branch’s ability to spy on Americans in the first place.

Then there’s the added language saying that the information is only actually “acquired” when its searched for even though it has already “retained” all the data. In other words, to get around the whole Constitution, Bush apparently just redefined the word acquire. And, to make this all the more obnoxious, while this language was only included for the first time on March 11th, the authorization claimed that Bush had really meant this to be the case all along. In short, the day after being told that the surveillance on Americans’ internet metadata was likely unconstitutional, President Bush (though put together by Dick Cheney’s top legal beaver David Addington) decided to fix all that by signing a new authorization that redefined a basic English word (“acquire”) and then retroactively say that this new definition applied backwards on all previous authorizations to spy on Americans, pretending that this magic incantation suddenly made it all Constitutional.

Apparently these legal shenanigans were enough to make then NSA Director Michael Hayden perfectly happy to keep spying on Americans in violation of both the FISA law and the Constitution.

This whole thing seems pretty horrific all around. The whole point of FISA was to restrict the government from spying on Americans. And, yes, we know that the past two administrations have basically tapdanced their way around that, but now we’re getting more details on exactly how. It starts with John Yoo insisting that the President can basically do whatever the fuck he wants because it’s “wartime” (never mind that Congress never officially declared war…), and then that the President can just override FISA because he says so. Then, let’s add into that the fact that the President (with help from David Addington) can apparently just redefine plain English words, in order to make illegal and unconstitutional surveillance of Americans appear legal, but, even more crazy, is that he can claim this new definition applies retroactively, after people realize that they may be on the hook for a few years worth of unconstitutional surveillance.

And, again, the folks who did all this keep telling us that we should just “trust them” because they’re doing everything to keep us safe.

There are some things that it’s entirely reasonable to keep secret if you’re a government. But your secret definition of a law that anyone can read — as well as your actions retroactively pushing that unique definition back historically, do not seem like the kinds of things that should be kept secret.

Filed Under: 4th amendment, alberto gonzales, andy card, david addington, george w. bush, internet metadata, james comey, john yoo, metadata, nsa, privacy, retroactive, richard ashcroft, secret interpretation, secret law, surveillance