Security Voices Against President Bush's Warrantless NSA Domestic Wiretap Program

Document Date: February 1, 2006
Affiliate: ACLU of the District of Columbia

Security Voices Against President Bush’s
Warrantless NSA Domestic Wiretap Program

Last updated: March 9, 2006

David Kris, former Associate Deputy Attorney General dealing with national security issues for the Bush administration, 2000-2003 (“Legal Rationale for Spy Program Question,” Associated Press, 3/09/06)

“Claims that FISA simply requires too much paperwork or the bothersome marshaling of arguments seem relatively weak justifications for resorting to constitutional powers in ‘violation of the statute’”

In an email to an aid of Attorney General Alberto Gonzales concerning the white paper Gonzales sent to Congress:

“I kind of doubt it’s going to bring me around on the statutory arguments… but you never know, and in any event I can respect the analysis even if I don’t fully agree.”

(“Ex-Justice Lawyer Rips Case for Spying,” Washington Post, 3/09/06)

“In sum, I do not believe the statutory law will bear the government’s weight…. I do not think Congress can be said to have authorized the NSA surveillance.”

Christopher Pyle, a former intelligence officer (“Checking big Brother,” American Prospect, 1/20/06)

“Whatever their excuse, one thing is clear: These domestic spies are eager to add to, not subtract from, their files and lists. If a suspect shares your name, you are likely to be stopped at the airport, rejected for employment, or denied a security clearance, over and over again. Unfortunately, there is no way to correct such an erroneous file, because the files are secret. And, even if the files of one agency could be corrected, the files of the hundreds, perhaps thousands, of other agencies on the network would still be infected. Years later, when the network is queried, the original error will come back as a hundredfold ‘truth,’ simply because so many agencies believe it.”

“The time has come to scale back this bloated system, before intelligence analysts drown in trivia, before the reputations of decent citizens are destroyed, and before the sheer scale of the spying intimidates Americans from ever questioning their government.”

Kenneth Bass, intelligence official and lawyer when FISA passed (Baltimore Sun, 1/20/06)

Kenneth Bass, an intelligence counsel to President Jimmy Carter when the 1978 law took effect, said the Bush administration still has not addressed another question surrounding the NSA’s domestic spying operation: Why didn’t the agency obtain court warrants anyway, which it could have gotten easily if everyone being listened to was suspected of being a member of al-Qaida or an affiliate?

Robert S. Mueller III, director of Federal Bureau of Investigation (“Spy Agency Data After Sept. 11 Led F.B.I. to Dead Ends,” New York Times, 1/17/06)

“Mueller … raised concerns about the legal rationale for the eavesdropping program, which did not seek court warrants, one government official said. Mr. Mueller asked senior administration officials about ‘whether the program had a proper legal foundation.’”

Jeffrey H. Smith, former CIA general counsel (“On Hill, Anger and Calls for Hearing Greet News of Stateside Surveillance,” Washington Post, 1/17/06)

“These programs always have a way of being abused, of expanding beyond the purpose for which they were created. If the president believed it, he could have gotten authority to do it in the Patriot Act. By avoiding that course, in so doing, he may ultimately wind up eroding the very power he seeks to assert.”

Suzanne Spaulding, former counsel to Sen. Arlen Specter (R-PA) and former counsel of the CIA (Baltimore Sun, 1/07/06)

“It’s a really smart, competent, careful analysis that really ought to give little or not comfort to the administration.” … “They effectively went through each legal argument and showed why it was full of holes and very weak.”

Robert Baer, former CIA agent (Star-Ledger, 1/05/06)

Baer said he is skeptical of President Bush’s claim that the New York Times article on the surveillance in any way compromised national security. “The bad guys assume all their phone calls are listened to,” Baer said. “Even if the Americans aren’t listening, they assume the Germans or the French are.”

Larry Johnson, former CIA agent (Star-Ledger, 1/05/06)

When asked if there was a chance a reporter’s phone was tapped, Johnson replied:

“Probably pretty good. It looks like anyone who has any contact with foreign suspects is fair game.” The big question, Johnson continued, is whether the Bush administration would use such information for political purposes.

Admiral Bobby R. Inman (ret.), NSA Director from 1977 to 1981 (New York Times, 1/04/06)

“What I don’t understand is why when you’re proposing the Patriot Act, you don’t set up an oversight mechanism for this? I would have preferred an approach to try to gain legislation.”

Russell Tice, former NSA intelligence agent and whistleblower on NSA (“National Security Agency Whistleblower Warns Domestic Spying Program is Sign the U.S. is Decaying Into a ‘Police State,’” Democracy Now, 1/03/06)

“The freedom of the American people cannot be protected when our constitutional liberties are ignored and our nation had decayed into a police state.”

Bruce Fein, Constitutional Scholar and former Deputy Attorney General in the Reagan Administration (Diane Rehm Show, 12/19/05)

Asked if spying on the American people was as impeachable an offense as lying and having sex with an intern, Fein replied:

“I think the answer requires at least in part considering what the occupant of the presidency says in the aftermath of wrongdoing or rectification. On its face, if President Bush is totally unapologetic and says I continue to maintain that as a wartime President I can do anything I want – I don’t need to consult any other branches – that is an impeachable offense. It’s more dangerous that Clinton’s lying under oath because it jeopardizes our democratic dispensation and civil liberties for the ages. It would set a precedent that … would lie around like a loaded gun, able to be used indefinitely for any future occupant.”

Katherine Teresa Gun, a former translator for British intelligence, who was arrested in 2003 under the Official Secrets Act for leaking information about NSA spying to the media (“Rice authorized National Security Agency to spy on UN Security Council in run-up to war, former officials say,” The Raw Story, 12/27/05)

“Any disclosures that may have been made were justified on the following grounds: because they exposed serious illegality and wrongdoing on the part of the U.S. Government who attempted to subvert our own security services and, to prevent wide-scale death and casualties among ordinary Iraqi people and UK forces in the course of an illegal war.”

Judge Royce C. Lamberth, federal district court judge, District of D.C., appointed by President Reagan (New York Times, 12/23/05)

Judge Royce C. Lamberth of Federal District, who had been the chief judge of the FISA court but no longer sits on the panel, has said publicly that he had often acted quickly to consider requests by officials. He said that after the bombings of United States Embassies in Africa in 1998, he held his first emergency sessions in his living room at 3 a.m. to review applications. He recounted that while he was mowing his lawn the first weekend in April. “I had to stop and do seven emergency hearings with four carloads of agents in the driveway.”

Jamie Gorelick, former Deputy Attorney General for the Clinton Administration (Washington Post, 12/20/05)

“There is an emergency within FISA, and one could ask for more authority. If they had good reason, Congress would have given it to them.”

Abraham Sofaer, former Legal Adviser, State Department, for Reagan and Bush Administrations (San Francisco Chronicle, 12/20/05)

“Necessity relates to emergency, and it’s always a special exemption to the law,” said Sofaer. But, he added, “to issue an executive order over and over again to set up a special way of doing something, I don’t consider it a necessity.”

Daniel Benjamin, formerly served on National Security Council staff (San Francisco Chronicle, 12/20/05)

“This will be a watershed because Congress cares a lot about the separation of powers and civil liberties, and the two wires cross here.” … “This is not something that the civil libertarians in the Republican party can overlook. This is going to be a big deal.”

Richard Falkenrath, senior official to George W. Bush 1st term (New York Times, 12/19/05)

“This was the week that the administration discovered the tide wouldn’t come in forever on presidential powers,” said Falkenrath… “Partly, that is because so much time has passed without a new attack. And partly, it is because there were so many missteps.”

Elizabeth R. Parker, former general counsel of the NSA and CIA (USA Today 12/19/05)

“Whether or not his theory is correct, the thing that is most important… is that you must go forward in a way that ensures you have public confidence and trust.”

Jeffrey H. Smith, former general counsel of the CIA (New York Times, 12/17/05)

“Clearly the president felt after 9/11 that he needed more powers than his predecessors had exercised. He chose to assert as much power as he thought he needed. Now the question is whether that was wise and consistent with our values.”