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Bush Authorized Domestic Spying Before 9/11

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"Even conceding that the President in his role as Commander in Chief may generally collect 'signals intelligence' on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA," the letter states. "Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, that is, not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim. The Supreme Court has never upheld warrantless wiretapping within the United States."

Additionally, "if the administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA," the letter continues. "One of the crucial features of a constitutional democracy is that it is always open to the President - or anyone else - to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable."

Jeffrey Smith, the former General Counsel for the CIA under the Clinton administration, also weighed in on the controversy Wednesday. Smith said he wants to testify at hearings that Bush overstepped his authority and broke the law. His own legal opinion on the spy program was included in a 14-page letter to the House Select Committee on Intelligence that said that President Bush does not have the legal authority to order the NSA to spy on American citizens, aides to Congressman John Conyers said Wednesday evening.

"It is not credible that the 2001 authorization to use force provides authority for the president to ignore the requirements of FISA," Smith wrote, adding that if President Bush's executive order authorizing a covert domestic surveillance operation is upheld as legal "it would be a dramatic expansion of presidential authority affecting the rights of our fellow citizens that undermines the checks and balances of our system, which lie at the very heart of the Constitution."

Still, one thing that appears to be indisputable is that the NSA surveillance began well before 9/11 and months before President Bush claims Congress gave him the power to use military force against terrorist threats, which Bush says is why he believed he had the legal right to bypass the judicial process.

According to the online magazine Slate, an unnamed official in the telecom industry said NSA's "efforts to obtain call details go back to early 2001, predating the 9/11 attacks and the president's now celebrated secret executive order. The source reports that the NSA approached U.S. carriers and asked for their cooperation in a 'data-mining' operation, which might eventually cull 'millions' of individual calls and e-mails."
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Jason Leopold spent two years covering California's electricity crisis as Los Angeles bureau chief of Dow Jones Newswires. Jason has spent the last year cultivating sources close to the CIA leak investigation, and is a regular contributer to t r u t h o u t.

Orginally published at www.truthout.org
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Jason Leopold is Deputy Managing Editor of Truthout.org and the founding editor of the online investigative news magazine The Public Record, http://www.pubrecord.org. He is the author of the National Bestseller, "News Junkie," a memoir. Visit (more...)
 

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