When Barack Obama takes the oath of office on January 20, Americans
won't just get a new president; they might finally learn the full
extent of George W. Bush's warrantless domestic wiretapping.
Since The New York Times first revealed in 2005 that
the NSA was eavesdropping on citizens' overseas phone calls and e-mail,
few additional details about the massive "Terrorist Surveillance
Program" have emerged. That's because the Bush administration has
stonewalled, misled and denied documents to Congress, and subpoenaed
the phone records of the investigative reporters.
Now privacy advocates are hopeful that President Obama will be more
forthcoming with information. But for the quickest and most honest
account of Bush's illegal policies, they say don't look to the incoming
president. Watch instead for the hidden army of would-be
whistle-blowers who've been waiting for Inauguration Day to open the
spigot on the truth.
"I'd bet there are a lot of career employees in the intelligence
agencies who'll be glad to see Obama take the oath so they can finally
speak out against all this illegal spying and get back to their real
mission," says Caroline Fredrickson, the ACLU's Washington D.C.
New Yorker investigative reporter Seymour Hersh
already has a slew of sources waiting to spill the Bush
administration's darkest secrets, he said in an interview last month.
"You cannot believe how many people have told me to call them on
January 20. [They say,] 'You wanna know about abuses and violations?
Call me then.'"
So far, virtually everything we know about the NSA's warrantless
surveillance has come from whistle-blowers. Telecom executives told USA Today
that they had turned over billions of phone records to the government.
Former AT&T employee Mark Klein provided wiring diagrams detailing
an internet-spying room in a San Francisco switching facility. And one
Justice Department attorney had his house raided and his children's computers seized as part of the FBI's probe into who leaked the warrantless spying to The New York Times. Attorney General Alberto Gonzales even suggested the reporters could be prosecuted under antiquated treason statutes.
If new whistle-blowers do emerge, Fredrickson hopes the additional
information will spur Congress to form a new Church Committee -- the
1970s bipartisan committee that investigated and condemned the
government's secret spying on peace activists, Martin Luther King, Jr.,
and other political figures.
But even if the anticipated flood of leaks doesn't materialize,
advocates hope that Obama and the Democratic Congress will get around
to airing out the White House closet anyway. "Obama has pledged a lot
more openness," says Kurt Opsahl of the Electronic Frontier Foundation,
which was the first to file a federal lawsuit over the illegal
One encouraging sign for civil liberties groups is that John
Podesta, president of the Center for American Progress, is a key figure
in Obama's transition team, which will staff and set priorities for the
new administration. The center was a tough and influential critic of the Bush administration's warrantless spying.
Among the unanswered questions:
Were there quid pro quo promises made to the phone companies and internet carriers who cooperated with the secret spying? For example, were co-conspirators promised lucrative government contracts?
Did the program appropriate the CALEA wiretapping infrastructure?
Under CALEA, Congress forced telecoms to build surveillance
capabilities into the phone and internet network, but promised it would
only be used with court orders.
What did the first version of the surveillance program sweep into its net?
In March 2004, a squadron of top officials at the Justice Department,
including then-Attorney General John Ashcroft and FBI head Robert
Mueller, threatened to resign over the illegality of the program. The
program was subsequently scaled back, but nobody knows what the NSA was
doing that was bad enough to horrify Ashcroft.
What was the legal rationale for the surveillance?FISA
explicitly made warrantless domestic eavesdropping illegal, but the
Justice Department's Office of Legal Counsel issued a series of memos
justifying the spying anyway. The ACLU is fighting the Bush
administration for access to the documents, as well as secret memos
"It's difficult to see how Sen. Obama could call his administration
transparent if his administration continues to suppress non-sensitive
information that should have been released a long time ago," says the
ACLU's Jameel Jaffer.
The other looming question is whether, as president, Obama will
continue the warrantless spying himself. Obama voted with the majority
in Congress to legalize the Bush spying program in July, but the
constitutionality of the measure is yet untested. An Obama
administration is less likely than Bush to devise convoluted legal
end-runs around the Constitution, according to Marc Rotenberg, the head
of the Electronic Privacy Information Center.
"Keep in mind that Obama is a constitutional scholar and has a deep
understanding of checks and balance," says Rotenberg. "It's hard to
imagine that an Obama administration would support ... warrantless
With the financial markets and the economy in deep trouble, it's
unlikely that Obama will quickly turn to the issue of warrantless
wiretapping. But the EFF's lawsuit against AT&T over the
surveillance could force the new administration to pick a side quickly.
In December, a federal judge in San Francisco will hold a hearing on
whether the retroactive immunity granted to AT&T and other telecoms
as part of the FISA Amendments Act is Constitutional. Obama voted for
the act in order to legalize the spying program, but tried
unsuccessfully to strip out the immunity provision.
EFF's Opsahl hopes that if EFF prevails in December, an Obama
administration might let the decision stand, clearing the way for EFF's
lawsuit to proceed.
"If we are victorious in our constitutional challenge, I would hope
the Obama administration would accept that loss and move on without an
appeal," says Opsahl. "But we will have to see."