The National Security Agency advised President Bush in early 2001 that it had been eavesdropping on Americans during the course of its work monitoring suspected terrorists and foreigners believed to have ties to terrorist groups, according to a declassified document.
The NSA's vast data-mining activities began shortly after Bush was sworn in as president and the document contradicts his assertion that the 9/11 attacks prompted him to take the unprecedented step of signing a secret executive order authorizing the NSA to monitor a select number of American citizens thought to have ties to terrorist groups.
In its "Transition 2001" report, the NSA said that the ever-changing world of global communication means that "American communication and targeted adversary communication will coexist."
"Make no mistake, NSA can and will perform its missions consistent with the Fourth Amendment and all applicable laws," the document says.
However, it adds that "senior leadership must understand that the NSA's mission will demand a 'powerful, permanent presence' on global telecommunications networks that host both 'protected' communications of Americans and the communications of adversaries the agency wants to target."
What had long been understood to be protocol in the event that the NSA spied on average Americans was that the agency would black out the identities of those individuals or immediately destroy the information.
But according to people who worked at the NSA as encryption specialists during this time, that's not what happened. On orders from Defense Department officials and President Bush, the agency kept a running list of the names of Americans in its system and made it readily available to a number of senior officials in the Bush administration, these sources said, which in essence meant the NSA was conducting a covert domestic surveillance operation in violation of the law.
Ok, so the point here is that the way the systems like Echelon are setup, they are always monitoring (as was alluded to by Russell Tice) but that information regarding persons within the U.S. is typically disgarded.or redacted.(As was the case with the NSA intercepts reviewed by John Bolton, until he requested and was granted access to the identities of U.S. citizens mentioned in the intercepts) Prior to 9-11 NSA did generally follow this procedure.
The NSA's domestic surveillance activities that began in early 2001 reached a boiling point shortly after 9/11, when senior administration officials and top intelligence officials asked the NSA to share that data with other intelligence officials who worked for the FBI and the CIA to hunt down terrorists that might be in the United States. However the NSA, on advice from its lawyers, destroyed the records, fearing the agency could be subjected to lawsuits by American citizens identified in the agency's raw intelligence reports.Eavesdropping on Americans required intelligence officials to obtain a surveillance warrant from a special court and show probable cause that the person they wanted to monitor was communicating with suspected terrorists overseas. But Bush said that the process for obtaining such warrants under the 1978 Federal Intelligence Surveillance Act was, at times, "cumbersome."
In a December 22, letter to the Senate Select Committee on Intelligence, Assistant Attorney General William E. Moschella wrote that the "President determined it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system."
However, what remains murky about that line of reasoning is that after 9/11, former Attorney General John Ashcroft undertook a full-fledged lobbying campaign to loosen the rules and the laws governing FISA [aka the Patriot Act] to make it easier for the intelligence community to obtain warrants for wiretaps to spy on Americans who might have ties to terrorists. Since the legislative change, more than 4,000 surveillance warrants have been approved by the FISA court, leading many to wonder why Bush selectively chose to bypass the court for what he said were a select number of individuals.
In addition to this revelation it appears that President Clinton has completely debunked the allegation that he ordered domestic spying in violation of FISA during his 2 terms as Commander in Chief.
Former President Clinton said Thursday that he never ordered wiretaps of American citizens without obtaining a court order, as President Bush has acknowledged he has done.
Clinton, in an interview broadcast Thursday on the ABC News program ''Nightline,'' said his administration either received court approval before authorizing a wiretap or went to court within three days after to get permission, as required by law.
''We either went there and asked for the approval or, if there was an emergency and we had to do it beforehand, then we filed within three days afterward and gave them a chance to second guess it,'' Clinton told ABC. link
When it comes down to it, the core of this spying scandal is actually a difference in interpretation of NSA legal duty between attorneys and employees (like Tice) at NSA who themselves feel that FISA should prevail and the Bush Administration who contend that FISA is unneccesary under the Presidents Article II powers -- however the question I have is why not go the extra mile and get the FISA warrants simply to protect the government from liability and protect any possible criminal cases from "fruit of the poison tree" contamination?
This dispute is what makes the Alito Nomination critically important - as his own stated views (at least those that he would admit too) of the "Unitary Executive" would tend to trump the NSA, regardless of precedents such as Hamdi where the famous "President doesn't receive a blank check" quote comes from.
A blank check and a rubber stamp to violate the civil rights of American citizens is exactly what this potential Justice would give the President.