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CrimethInc. sticker on a telephone warning users of phone tapping by the U.S. government. (Photo: Lotus Carroll)

Bush-Era Dragnet Memos Show 'Virtually Unlimited' Presidential Power

Constitution gives President power to conduct warrantless searches "even in peacetime," memos claim

Nadia Prupis

The Justice Department on Friday released two legal memos written during the Bush administration justifying the National Security Agency surveillance program that spied on American citizens' phone calls and emails shortly after the terrorist attacks in 2001, the Washington Post reports.

The program, called Stellar Wind, created legal support for mass collection of communications data based solely on Presidential authorization. It allowed the NSA to spy on communications within the U.S. when at least one party was believed to be affiliated with al-Qaeda, and at least one end of the communication was overseas. Authored by then-Assistant Attorney General Jack Goldsmith, the memos argue that Stellar Wind does not violate Fourth Amendment rights of U.S. citizens because invasion of privacy is outweighed by the government's "interest" in stopping terrorist attacks — and that Article 2 of the Constitution gives the president power to conduct a communications dragnet "even in peacetime."

"Their conclusions are deeply disturbing," ACLU staff attorney Jack Toomey told the Post. "They suggest that the president’s power to monitor the communications of Americans is virtually unlimited — by the Constitution, or by Congress — when it comes to foreign intelligence."

The Post reports:

Goldsmith argued that Congress’s 2001 Authorization for the Use of Military Force passed shortly after the al-Qaeda attacks on the United States provided “express authority” for the warrantless program. “In authorizing ‘all necessary and appropriate force,’ ” he reasoned, the AUMF necessarily applied to electronic surveillance, including domestically.

While the New York Times revealed the existence of Stellar Wind in 2005, the somewhat-redacted documents (pdf) released last night to the ACLU go much deeper into detail about the program.

"The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces," wrote Goldsmith. "Congress does not have the power to restrict the President's exercise of that authority."

"The government's overwhelming interest in detecting and thwarting further al Qaeda attacks is easily sufficient to make reasonable intrusion into privacy involved in intercepting selected communications," the memos claim, an argument that was echoed by the NSA and dragnet supporters after the Snowden leaks revealed the agency's mass surveillance program in 2013. "Even in peacetime, absent Congressional action, the President has inherent constitutional authority, consistent with the Fourth Amendment, to order warrantless foreign intelligence surveillance."

"He also asserted that the authorization can be read to 'provide specific authority . . . that overrides the limitations' of the Foreign Intelligence Surveillance Act, a law passed in 1978 that required a court order to wiretap an American or any person on U.S. soil," the Post writes.

At the time that the memos were authored, one of the more controversial elements of the program included a bulk collection of email metadata, such as information about the senders and recipients of messages. In March 2004, the DOJ Office of Legal Counsel concluded that that part of Stellar Wind was not legal, and then-Acting Attorney General James Comey did not reauthorize it. Stellar Wind was reined in by court oversight in 2007, but a FISA amendment created just one year later granted new authority to the government to spy on targets "reasonably believed" to be located outside the U.S.

The Post continues:

The warrantless program was placed under statute in 2007 and 2008 by Congress. The current program, known as Section 702 of the FISA Amendments Act, gives the government authority to collect communications on U.S. soil when the target is believed to be a foreigner overseas — not just for purposes of countering terrorism, but also for broader foreign intelligence purposes.

"Unfortunately, the sweeping surveillance they sought to justify is not a thing of the past," Toomey told the Post. "The government’s legal rationales have shifted over time, but some of today’s surveillance programs are even broader and more intrusive than those put in place more than a decade ago by President Bush."

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