Bush Breaks His Pledge on Surveillance

By Scott Horton

Today the New York Times reports that the Administration has reneged on its agreement to halt surveillance operations which are criminal conduct under the FISA statute. The news came in testimony by NSA director McConnell before the Senate Intelligence Committee on Tuesday:

[T]hey argued that the president had the constitutional authority to decide for himself whether to conduct surveillance without warrants.

As a result of the January agreement, the administration said that the National Security Agency’s domestic spying program has been brought under the legal structure laid out in the Foreign Intelligence Surveillance Act, which requires court-approved warrants for the wiretapping of American citizens and others inside the United States.

But on Tuesday, the senior officials, including Michael McConnell, the new director of national intelligence, said they believed that the president still had the authority under Article II of the Constitution to once again order the N.S.A. to conduct surveillance inside the country without warrants.

Under the compromise worked out at the beginning of the year, the Bush Administration agreed that it would submit its requests to monitor targets under some secret new proceeding in the FISA court, the exact parameters of which were never worked out. Civil libertarians were not happy about this, but it was something. But now, after a year of public debate, we learn that this was all an illusion. We are right back where we started: with a president who asserts that his commander-in-chief powers give him the right to ignore the specific requirements set out in FISA.

Now, it seems that even this is not enough for our Dear Leader. Taking a cue from the North Korean playbook (make an agreement, then renege at your leisure), he has announced a new diktat through his director of national intelligence, Michael McConnell: Although the President currently abides by the warrant requirement, he has inherent constitutional authority to disregard FISA at any time and at his sole discretion. He merely deigns to apply for warrants at his pleasure. This is, of course, the implausible argument that got him into legal hot water in the first place.

Perhaps the President thinks that no one will notice that he has gone back on his promise to maintain some semblance of the rule of law. Sorry, we noticed.

I read it a little differently from Jack. I don’t think Bush ever had any intention to honor his pledge. It was offered to get his critics to pipe down, not with any intention ever to abide by it. That is an operational principle of this administration after all.