January 23, 2006
The Bush administration is responding to revelations of illegal
government spying by mounting a campaign to defend its actions,
employing the same arguments that have been used to justify a
massive expansion of executive powers on a number of different
fronts. Far from retreating in the face of media reports of the
secret National Security Agency (NSA) program to spy on US citizens,
the administration has declared that it cannot be constrained
in carrying out these actions.
The existence of the NSA program was first revealed last month
in an article in the New York Times. It was reported at
the time that the Bush administration had authorized the NSA to
spy on some communications entering or leaving the United States.
It has since become clear that the spying agency has gained access
to vast databases of telephone calls and e-mails, most of which
have nothing to do with Al Qaeda, but include communications made
by ordinary Americans. During the past several months, there have
also been numerous revelations of spying on American citizens
because of their antiwar activity.
The pseudo-legal arguments used to defend the NSA program were
outlined in a 42-page document issued by the Justice Department
on January 19. The memo claims that the spying falls within the
framework of the president’s wartime powers as commander
in chief of the military, which the Bush administration contends
were activated by the Authorization for the Use of Military Force
(AUMF), passed by Congress in the wake of the attacks of September
Because the country is at war, the Justice Department memo
argues, the president has the authority to "conduct warrantless
surveillance of enemy forces." The NSA activities "are
primarily an exercise of the President’s authority as Commander
in Chief during an armed conflict that Congress expressly has
authorized the President to pursue," it argues. "The
NSA activities, moreover, have been undertaken specifically to
prevent a renewed attack at the hands of an enemy that has already
inflicted the single deadliest foreign attack in the Nation’s
Governments seeking to appropriate dictatorial powers have
often warned that these powers are necessary to protect the nation
against some external threat. The Bush administration’s arguments
are entirely within this mold. The Justice Department memo states,
"The AUMF places the President at the zenith of his powers
in authorizing the NSA activities."
The memo attempts to justify this previously unknown term—"zenith
of his powers"—by referencing a concurring opinion written
by US Supreme Court Justice Robert Jackson in the 1952 Steel
Seizure Case. In that case, the Supreme Court ruled that President
Harry Truman could not claim wartime powers in seizing control
of steel mills that had stopped production during a strike. In
his opinion, Jackson outlined three scenarios that might govern
a presidential action: (1) A president acts "pursuant to
an express or implied authorization of Congress," in which
case his powers were at their maximum; (2) There is no legislation
bearing on the matter, in which case the president is in a "zone
of twilight" regarding what he may or may not do; and (3)
The president acts in a way that is expressly forbidden by Congress,
in which case his power is at its "lowest ebb."
According to this rubric, the NSA spying program would clearly
fall within category 3, since the 1978 Foreign Intelligence Surveillance
Act forbids spying on communications originating from or entering
the United States without a court-approved warrant. The Bush administration,
however, argues that the AUMF authorizes the president to use
all of his traditional wartime powers, including intelligence
gathering on all alleged enemies in this war. Therefore, the Justice
Department memo claims, its actions fall under category 1 of Jackson’s
The idea that the AUMF authorizes a vast expansion of domestic
spying powers is absurd. The legislation states, in part, "The
President is authorized to use all necessary and appropriate force
against those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist attacks
that occurred on September 11, 2001." It says nothing about
spying on US citizens. However, in interpreting the act as conferring
expansive new powers, the administration has pointed to precedent
in the 2004 Supreme Court decision in the case of Yaser Hamdi.
At the time, the Hamdi case was championed by the Democrats
as a major setback for the Bush administration because it granted
so-called "enemy combatants," including Hamdi, a US
citizen, certain habeas corpus rights (which have since been sharply
curtailed by a congressional act passed late last year). As the
WSWS noted at the time, however, the controlling decision, written
by Justice Sandra Day O’Connor, accepted the validity of
the "war on terror" and the argument that the AUMF gives
the president the power to seize anyone, including US citizens,
and hold them indefinitely as enemy combatants. (See The
meaning of the US Supreme Court rulings on 'enemy combatants’)
The administration is now arguing on the same grounds that
the AUMF gives it the authority to carry out domestic spying.
A similar argument has been advanced in administration memos to
claim that the president has the right to order military tribunals
and the torture of prisoners.
In putting forward this argument, the administration is adopting
the position that the entire world, including the United States,
is a battlefield in the war on terror. Since the American government
is at war, and since the battlefield includes the United States,
spying on US residents is necessary in order to spy on the enemy.
In essence, the Bush administration has declared that the US
population as a whole consists of actual or potential combatants
in the war on terrorism. The repeated statements to the effect
that the spying only involves members of Al Qaeda—or those
associated with it—are entirely bogus, since the databases
the government is accessing are not limited to communications
between Al Qaeda members.
A report issued January 5 by the Congressional Research Service
examining the administration’s justifications for the NSA
program noted: "The Administration’s position would
seem to rely on at least two assumptions. First, it appears to
require that the power to conduct electronic surveillance for
intelligence purposes is an essential aspect of the use of military
force in the same way that the capture of enemy combatants on
the battlefield is a necessary incident to the conduct of military
operations. Second, it appears to consider the 'battlefield’
in the war on terrorism to extend beyond the area of traditional
military operations to include US territory."
According to this view, the report noted, "the United
States is under actual and continuing enemy attack, and the President
has the authority to conduct electronic surveillance in the same
way the armed forces gather intelligence about the military operations
of enemy forces, even if no actual combat is taking place."
The administration still has to deal with the inconvenient
fact that FISA explicitly prohibits the very type of actions that
have been authorized for the NSA. In particular, it mandates that
any surveillance of communications entering or leaving the United
States must be approved by a FISA court. The FISA Act was set
up in 1978 after revelations that US intelligence agencies were
carrying out extensive monitoring of antiwar protestors and other
opponents of US government policies.
Besides its general commitment to the principle of unconstrained
executive power, the administration wants to bypass FISA for two
reasons. First, it is filtering through large databases that include
thousands or even millions of separate communications. Second,
the ultimate aim is to spy on all political opponents, and not
simply those that can somehow be tied to Al Qaeda.
In dismissing FISA, the Justice Department argues that if FISA
or other legislation is "interpreted to impede the President’s
ability to use the traditional tool of electronic surveillance"
then "the constitutionality of FISA, as applied to that situation,
would be called into very serious doubt." Since the constitutional
powers of the president as commander in chief are essentially
unlimited, any constraints on these powers may be unconstitutional.
The memo then makes the argument that the NSA program does not
in fact violate FISA, based again on the claim that the AUMF authorizes
Finally, the Justice Department maintains that the spying program
is not a violation of the Fourth Amendment protection against
"unreasonable searches and seizures." The searches "are
reasonable because the Government’s interest, defending the
Nation from another foreign attack in time of armed conflict,
outweighs the individual privacy interests at stake, and because
they seek to intercept only international communications where
one party is linked to al Qaeda or an affiliated terrorist organization."
Behind the pages of obfuscation laid out by the Justice Department
report is the basic argument that the undefined "war on terrorism"
confers upon the president unprecedented powers that have no limit
in space or time. Underlying this argument is the "Big Lie,"
accepted by the entire political establishment and the media,
that all the actions of the US government since 2001 have been
in response to the threat of terrorism. In fact, the attacks of
September 11 have been used as a pretext to carry out polices
long sought by the American ruling elite, including the wars in
Afghanistan and Iraq and the unprecedented attack on democratic
rights in the US.
The extraordinary attack on democratic rights represented by
the NSA program and the other actions of the Bush administration
has only been possible due to the complicity of the Democratic
Party. On the Sunday morning television talk shows, leading Democrats
declared their support for the spying in general, only voicing
the hope that the administration would do it in a way that was
less overtly illegal.
On ABC’s program "This Week," former presidential
candidate and current senator John Kerry declared that while he
was critical of the way the administration had pursued the program
in secret, he considered a move by Congress to cut off funding
for it to be "premature." He said the president should
go to Congress if he wants to get authorization to continue the
Senator Joseph Lieberman, the former vice presidential candidate,
declared on CBS’s "Face the Nation," "I want
my president to be reading e-mails of people talking to Al Qaeda."
He added, "Congress needs to get together on a bipartisan
basis and give the president the authority to do what he has done."
And Senator Jane Harman, the ranking member of the House Intelligence
Committee, also on "This Week," said that "if FISA
is being violated, we should either change FISA or change the
program." She indicated her preference by declaring that
we "need a strong program." As a member of the so-called
congressional "Group of Eight," Harman has received
briefings on the spy program since it began four years ago.