George W. Bush Tried To Retroactively Declare Illegal, Unconstitutional NSA Surveillance Legal, Because He Said So
from the secret-laws,-secret-interpretations dept
When it comes to the NSA, we've been discussing just how dangerous it is when the government gets to put in place its own secret interpretation of laws that, when read by the public, appear to say something quite different than the secret interpretation. Otherwise you have secret laws, and that's no way to run an open Constitutional democracy. For many years, it's been known that in March of 2004 there was a hospital room showdown between then White House Counsel Alberto Gonzales (with White House Chief of Staff Andy Card) and (at the time, quite ill) Attorney General John Ashcroft and acting Attorney General James Comey, over whether or not to reauthorize some sort of surveillance program. Comey, Ashcroft, and then FBI Director Robert Mueller all threatened to resign over the issue, and eventually, we were told, President Bush overruled Gonzales and Card. We knew at the time that the dispute was over domestic surveillance and whether or not it was legal. More recently, it came out that it was over domestic collection of internet/email metadata. This was a program similar to the phone metadata program that was revealed by Ed Snowden, but for email/internet information.However, in response to a FOIA lawsuit filed by the NY Times, late on Friday, the government declassified some more information about what happened, and it appears that George W. Bush tried to first retroactively "legalize" this pretty clearly unconstitutional domestic surveillance, by saying that he'd always meant that while the NSA could sweep up all metadata, it didn't technically "acquire" it until it did a search on it. Again, this is in direct contrast to what most people thought the law (and the 4th Amendment) says the government could do.
This happened on March 11th, the day after the hospital showdown. President Bush signed a new authorization for the mass surveillance of internet records, but first decided that the White House Counsel, Gonzales, could certify it by himself, rather than having the Attorney General sign it, as in the past. This new authorization, though, directly claims that the President can simply override the law, including the Foreign Intelligence Surveillance Act, which was put in place to limit the Executive Branch's ability to spy on Americans in the first place.
Apparently these legal shenanigans were enough to make then NSA Director Michael Hayden perfectly happy to keep spying on Americans in violation of both the FISA law and the Constitution.
And, again, the folks who did all this keep telling us that we should just "trust them" because they're doing everything to keep us safe.
There are some things that it's entirely reasonable to keep secret if you're a government. But your secret definition of a law that anyone can read -- as well as your actions retroactively pushing that unique definition back historically, do not seem like the kinds of things that should be kept secret.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 4th amendment, alberto gonzales, andy card, david addington, george w. bush, internet metadata, james comey, john yoo, metadata, nsa, privacy, retroactive, richard ashcroft, secret interpretation, secret law, surveillance
Reader Comments
Subscribe: RSS
View by: Time | Thread
It's Bush
o wait shit... he didn't invent it? O yea, the founder's DID warn us that a bastard like Bush would come, then sadly followed up by Obama!
Tyranny and Oppression has arrived under the guise of fighting a foreign enemy, ushers in by Bush, and guess who loves this guy!!! The Military! The very people he drove a dagger into the backs of with the DHS and TSA!
[ link to this | view in chronology ]
Sounds like the US forgot to read its own TOS.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
if you remember this in the USA, you're doing real well!!
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
Can't say this surprises me. Cheney is one step away from the Devil himself.
[ link to this | view in chronology ]
Re: Re:
...but NO WAY they could have reichstagged nine one one, richtig ? ? ?
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Had that on a t-shirt
http://i32.photobucket.com/albums/d32/ktetch/ppus/immunity3.png
[ link to this | view in chronology ]
br3n
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
President precident
[ link to this | view in chronology ]
I did a double-take on reading this. It sounds almost exactly like my rant about Bush to a friend of mine over coffee the other day, except that I used only last names and titles like The Damned One Yoo. My rant was really about why I couldn't support another Bush or Clinton for the almost hereditary title of President. But that was part of my rant.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
It's funny (no it isn't) about that Congress
Let's not forget that our Constitutional Law Professor President (TM) just extended our National Emergency for the 14th consecutive year. -- https://www.whitehouse.gov/the-press-office/2015/09/10/message-continuation-national-emergency-respe ct-certain-terrorist
[ link to this | view in chronology ]
presidential scapegoat
the information is only actually "acquired" when its searched for even though it has already "retained" all the data.
/quote
hmm... a shady^H^H^H^H^H crafty lawyer could use this very line:
"Lawyer: Your Honor, based on presidential order xyz/200X signed by G.W.Bush, those iThings (and the truck they were in) were NOT stolen^H^H^H acquired by my client, as he has not opened the wrappings on each individual iThing. He only retained the truck with all its contents.
Judge: Verdict: not guilty.
"
/sarcasm
[ link to this | view in chronology ]
Literal weasels
Remember when another president redefined sex to not include blowjobs?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
I'd bet thats what these folks actually fantasize about
[ link to this | view in chronology ]