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Bush-Era Dragnet Memos on Justification for Warrantless Wiretapping: “An Authority Congress Cannot Curtail”

In ACLU, Archive, Bush, DOJ, NSA, Surveillance on September 9, 2014 at 9:41 AM

“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.” – Patrick Toomey, ACLU

bush-nsa

09/06/2014

Ellen Nakashima/WashingtonPost:

The Justice Department released two decade-old memos Friday night thanks to ACLU/EPIC FOIA requests, offering the fullest public airing to date of the Bush administration’s legal justification for the warrantless wiretapping of Americans’ phone calls and e-mails — a program that began in secret after the 2001 terrorist attacks.

The broad outlines of the argument — that the president has inherent constitutional power to monitor Americans’ communications without a warrant in a time of war — were known, but the sweep of the reasoning becomes even clearer in the memos written by then-Assistant Attorney General Jack Goldsmith, who was head of President George W. Bush’s Office of Legal Counsel.

“We conclude only that when the nation has been thrust into an armed conflict by a foreign attack on the United States and the president determines in his role as commander in chief . . . that it is essential for defense against a further foreign attack to use the [wiretapping] capabilities of the [National Security Agency] within the United States, he has inherent constitutional authority” to order warrantless wiretapping — “an authority that Congress cannot curtail,” Goldsmith wrote in a redacted 108-page memo dated May 6, 2004.

So broad is the president’s Article II power, that he can conduct warrantless searches for foreign intelligence purposes without congressional approval “even in peacetime,” Goldsmith stated, citing Supreme Court cases and the Federalist papers.

The program, code-named STELLAR WIND, enabled the NSA to collect communications on U.S. soil when at least one party was believed to be a member of al-Qaeda or an al-Qaeda affiliate, and at least one end of the communication was overseas.

Its existence was revealed in 2005 by the New York Times, setting off great controversy, and the program was finally brought under court oversight in 2007.

More…

Marcy Wheeler/Emptywheel:

As I noted earlier, I think the re-release of Jack Goldsmith’s May 6, 2004 OLC memo authorizing STELLAR WIND is meant to warn Congress that the Executive does not believe it needs any Congressional authorization to spy on every American – just in time for the USA Freedom Act debate in the Senate. This is exactly parallel to similar provocations during the Protect America Act debate. In the past, such provocations led Congress to capitulate to Executive branch demands to tailor the program to their wishes.

That earlier post, however, implied that this warning pertains primarily to the phone dragnet. It doesn’t. The warning also applies to the Internet dragnet (and I suspect that stories about the heroic hospital heroes shutting down the Internet dragnet have been dramatically overblown).

The new information makes it clear that Goldsmith asserted that Smith v. Maryland applied for metadata — and applied to both phone and Internet metadata. Remarkably, in that analysis, the government keeps at least one paragraph addressing phone metadata hidden, but reveals the analysis at 106-7 (PDF 74-75) that applies to Internet. (Goldsmith’s claim that Internet users can get providers to turn off spam, at the bottom of 107, is particularly nice.)

In perhaps the most interesting newly released passage (out of the roughly 5 pages that got newly released!), Goldsmith absolves himself of examining what procedures the government was using in its “metadata” collection.

As for meta data collection, as explained below, we conclude that under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979), the interception of the routing information for both telephone calls and e-mails does not implicate any Fourth Amendment interests.85

85 Although this memorandum evaluates the STELLAR WIND program under the Fourth Amendment, we do not here analyze the specific procedures followed by the NSA in implementing the program.  (101/PDF 69)

I find this utterly damning, given that we know that, for the following 5 years, the government would lie to FISC about whether their “metadata” contained content. Even the OLC opinion built in the Executive’s ability to collect content in the guise of metadata!

In any case, what is clear — again, just in time to impact the debate over USA Freedom, for which prospective call record collection might or might not be limited to telephone content — is that rather than legally shutting down the Internet dragnet in 2004, Jack Goldsmith authorized it.

And that authorization remains in place, telling the Executive it can collect Internet (and phone) “metadata” whether or not FISC or Congress rubberstamps it doing so. Not only that, but telling the Executive this analysis holds regardless of how inadequate their procedures are in implementing this program to ensure that no content gets swept up in the guise of metadata (which of course is precisely what occurred).

So the Administration, in releasing this “newly unredacted” memo did one thing. Tell Congress it will continue to collect phone and Internet “metadata” on its own terms, regardless of what Congress does.

More…

Related Links:

STELLARWIND Classification Guide (January 2009)

NSA Inspector General Report on Email & Internet Data Collection Under Stellar Wind (March 2009)

  1. […] end privacy protections both Binney and Loomis built into their earlier, less expensive system). NSA then “illegally directed” STELLARWIND en masse sans privacy protections on Americans and the rest of the […]

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