Monday, December 19, 2005

In a radio speech from the White House on 17 December 2005, President Bush acknowledged that in the weeks following 9/11 he had “authorized the National Security Agency [NSA], consistent with U.S. law and the Constitution, to intercept international communications of people with known links to al Qaeda and related terrorist organizations.”

President Bush said that the government establishes a clear link to terrorist networks before intercepting these communications, adding that the purpose of the program is to “detect and prevent terrorist attacks against the United States and our allies.”

Stating that terrorists inside the United States were communicating with terrorists abroad before the 9/11 attacks, President Bush said that the authorization he gave the NSA “helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities.”

Secretary of State Condoleezza Rice said that established procedures requiring court approval were simply not quick and flexible enough to respond to the urgency of the terrorist threat, and to allow the administration to eavesdrop on highly mobile targets in order to disrupt potential plots.

Before Bush’s secret order, such wiretaps were obtained through the Foreign Intelligence Surveillance Act (FISA) of 1978. It prescribes procedures for requesting judicial authorization for electronic surveillance and physical search of persons engaged in espionage or international terrorism against the United States on behalf of a foreign power. FISA also allows the Attorney General to grant permission for emergency wiretaps without a warrant, with retroactive application being made within 72 hours. Historically, the vast majority of applications are accepted without modifications by FISA. For example in the 2004 report of FISA to Congress it is noted that the number of approved warrants with substantive modifications was 94 out of a total of 1758 while 5 applications were rejected.

House Intelligence Committee Chairman Peter Hoekstra defended Bush’s authorization of the surveillance program and to bypass the FISA. Chairwoman of the Homeland Security and Governmental Affairs Committee Senator Susan Collins announced a call on the NSA for a “full briefing” about the program, and said that the program’s authority needs to be clarified. House Minority Leader Nancy Pelosi said Bush’s radio address raised “serious questions as to what the activities were and whether the activities were lawful.”

The President noted that the NSA activities are reviewed “approximately every 45 days.” He added: “During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation’s top legal officials, including the attorney general and the counsel to the president.” All people involved in the periodic review are members of the executive branch.

Bush also said that NSA’s activities under this authorization are thoroughly reviewed by the Justice Department and NSA’s top legal officials, including NSA’s general counsel and inspector general, adding that “leaders in Congress have been briefed more than a dozen times on this authority and the activities conducted under it.” Members of Congress from both parties are now calling for congressional hearings to learn more.

The president concluded by saying that “this authorization is a vital tool in our war against the terrorists. It is critical to saving American lives. The American people expect me to do everything in my power under our laws and Constitution to protect them and their civil liberties.”