George W. Bush Tried To Retroactively Declare Illegal, Unconstitutional NSA Surveillance Legal, Because He Said So

from the secret-laws,-secret-interpretations dept

Mon, Sep 21st 2015 11:46am — Mike Masnick

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.

Then there's the added language saying that the information is only actually "acquired" when its searched for even though it has already "retained" all the data. In other words, to get around the whole Constitution, Bush apparently just redefined the word acquire.

And, to make this all the more obnoxious, while this language was only included for the first time on March 11th, the authorization claimed that Bush had really meant this to be the case all along.

In short, the day after being told that the surveillance on Americans' internet metadata was likely unconstitutional, President Bush (though put together by Dick Cheney's top legal beaver David Addington) decided to fix all that by signing a new authorization that redefined a basic English word ("acquire") and then retroactively say that this new definition applied backwards on all previous authorizations to spy on Americans, pretending that this magic incantation suddenly made it all Constitutional.

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.

This whole thing seems pretty horrific all around. The whole point of FISA was to restrict the government from spying on Americans. And, yes, we know that the past two administrations have basically tapdanced their way around that, but now we're getting more details on exactly how. It starts with John Yoo insisting that the President can basically do whatever the fuck he wants because it's "wartime" (never mind that Congress never officially declared war...), and then that the President can just override FISA because he says so. Then, let's add into that the fact that the President (with help from David Addington) can apparently just redefine plain English words, in order to make illegal and unconstitutional surveillance of Americans appear legal, but, even more crazy, is that he can claim this new definition applies retroactively, after people realize that they may be on the hook for a few years worth of unconstitutional surveillance.

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.

Savage Nyt Foia Stellarwind Ig Report (PDF)Savage Nyt Foia Stellarwind Ig Report (Text)

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

27 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 21 Sep 2015 @ 12:01pm

It's Bush
The guy practically invented act like you are hero to everyone while simultaneously getting them to surrender freedoms for the illusion of safety...

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 ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 21 Sep 2015 @ 12:16pm

Silly government, only Google gets to read people's emails.

Sounds like the US forgot to read its own TOS.
[ link to this | view in chronology ]
Berenerd (profile), 21 Sep 2015 @ 12:27pm

Now we know why we went to "war". So noone could question him while in a state of war.
[ link to this | view in chronology ]
Anonymous Coward, 21 Sep 2015 @ 12:42pm

'that's no way to run an open Constitutional democracy'

if you remember this in the USA, you're doing real well!!
[ link to this | view in chronology ]
Anonymous Coward, 21 Sep 2015 @ 12:46pm

Nothing the GWB administration did surprises me anymore - except for one thing: why didn't John Yoo write a memo calling this 'enhanced acquirement'? He could have used phrases like "aggressively touching the data" and justified it by saying "no data was permanently harmed, but it might need a week or two off to recuperate".
[ link to this | view in chronology ]
- lucidrenegade (profile), 21 Sep 2015 @ 3:25pm
  
  Re:
  President Bush (though put together by Dick Cheney's top legal beaver David Addington)
  
  Can't say this surprises me. Cheney is one step away from the Devil himself.
  [ link to this | view in chronology ]
  - art guerrilla (profile), 21 Sep 2015 @ 5:12pm
    
    Re: Re:
    and capable of so much perfidy, so much eee-vil, so many hundreds of thousands of mostly innocent lives lost by their/our warmaking...
    
    ...but NO WAY they could have reichstagged nine one one, richtig ? ? ?
    [ link to this | view in chronology ]
  - Anonymous Coward, 22 Sep 2015 @ 3:29am
    
    Re: Re:
    Are you sure Cheney isn't the devil's elder brother?
    [ link to this | view in chronology ]
Andrew (profile), 21 Sep 2015 @ 1:01pm

Had that on a t-shirt
Back in 08, when I was heading the US Pirate Party, and when the warrentles wiretaps came up, I created this image for some shirts, which we never ended up using.

http://i32.photobucket.com/albums/d32/ktetch/ppus/immunity3.png
[ link to this | view in chronology ]
br3n (profile), 21 Sep 2015 @ 1:39pm

we dont seem to Learn from history
br3n
[ link to this | view in chronology ]
Anonymous Coward, 21 Sep 2015 @ 2:18pm

It's 2015 and you're still ragging on Bush? Give it a rest already.
[ link to this | view in chronology ]
- Anonymous Coward, 21 Sep 2015 @ 2:33pm
  
  Re:
  Good point. It's not like anything done by a previous administration might actually be affecting us today.
  [ link to this | view in chronology ]
- Anonymous Coward, 21 Sep 2015 @ 3:22pm
  
  Re:
  You can't stop or else the Republican Party will deem him a hero like they did with Ronnie Raygun.
  [ link to this | view in chronology ]
- lucidrenegade (profile), 21 Sep 2015 @ 3:22pm
  
  Re:
  “Learn from history or you're doomed to repeat it.”
  [ link to this | view in chronology ]
  - Anonymous Coward, 21 Sep 2015 @ 5:29pm
    
    Re: Re:
    Unfortunately we are repeating it now with Obama.
    [ link to this | view in chronology ]
- That One Guy (profile), 21 Sep 2015 @ 7:21pm
  
  Re:
  Because it took this long for them to graciously allow the peons to actually know what happened. If the documents had been released when it happened, then it would have been discussed then, but funny thing, the government didn't want the public to know about how the president was basically saying that he's immune from any legal restrictions and can rewrite words to make illegal acts retroactively legal, and so kept that info buried until now.
  [ link to this | view in chronology ]
Anonymous Coward, 21 Sep 2015 @ 3:20pm

The thing that really gets me .. no justice.. none ..not a single criminal from the bush/cheney cartel have been charged or convicted of anything.
[ link to this | view in chronology ]
- Anonymous Coward, 21 Sep 2015 @ 4:08pm
  
  Re:
  Careful! I detect sanctimony, and that they'll actually prosecute you for.
  [ link to this | view in chronology ]
- Anonymous Coward, 21 Sep 2015 @ 5:29pm
  
  Re:
  Or the Clintons. The ruling class will not go after their own.
  [ link to this | view in chronology ]
Anonymous Coward, 21 Sep 2015 @ 5:41pm

President precident
A POTUS redefining a word in a convenient way? Well, in GWBs defense, there "is" precident,,,
[ link to this | view in chronology ]
Anonymous, 21 Sep 2015 @ 7:45pm

"The whole point of FISA was to restrict the government from spying on Americans. And, yes, we know that the past two administrations have basically tapdanced their way around that, but now we're getting more details on exactly how. It starts with John Yoo insisting that the President can basically do whatever the fuck he wants because it's "wartime" (never mind that Congress never officially declared war...), and then that the President can just override FISA because he says so. Then, let's add into that the fact that the President (with help from David Addington) can apparently just redefine plain English words, in order to make illegal and unconstitutional surveillance of Americans appear legal, but, even more crazy, is that he can claim this new definition applies retroactively, after people realize that they may be on the hook for a few years worth of unconstitutional surveillance."

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 ]
Anonymous Coward, 21 Sep 2015 @ 9:48pm

He might as well just declare himself dictator for life and it will have about as much legality
[ link to this | view in chronology ]
seedeevee (profile), 21 Sep 2015 @ 10:35pm

It's funny (no it isn't) about that Congress
I like a George Bush bashing as well as the next guy, but I don't think the members of Congress that voted for this unlimited War should be forgotten so easily. They voted to give that alcohol and cocaine addled parasite the power to do whatever he wanted -- and he did.

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 ]
Anonymous Coward, 22 Sep 2015 @ 12:51am

presidential scapegoat
quote
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 ]
Klaus, 22 Sep 2015 @ 1:11am

Literal weasels
"Bush apparently just redefined the word acquire."

Remember when another president redefined sex to not include blowjobs?
[ link to this | view in chronology ]
Anonymous Coward, 22 Sep 2015 @ 7:09am

Congress declared war in the 1941 with a purposeful giant loophole in the peace treaty/declaration of peace. There is one declared war. Don't set up a genocidal nazi regime.
[ link to this | view in chronology ]
Anonymous Coward, 22 Sep 2015 @ 7:22am

The King of the world

I'd bet thats what these folks actually fantasize about
[ link to this | view in chronology ]