Bush's Warrantless Spying Program Cast Far Wider Net Than Previously Thought; Media, Journalists and Bloggers Targeted

Former U.S. Intelligence Official Reveals Bush Administration Indiscriminately Eavesdropped on All Americans' Telephone, Internet and Fax Communications Without Court Warrants -- Far Exceeding the Scope of a Similar 1970s Program Under Nixon That the Supreme Court Declared Unconstitutional



It was only a matter of time before the full extent of former President George W. Bush's warrantless electronic surveillance program would be exposed following his departure from office. But when a former U.S. intelligence official who helped The New York Times reveal the program's existence three years ago appeared on MSNBC's "Countdown with Keith Olbermann" just a day after Barack Obama was sworn in Tuesday as Bush's successor, he dropped a bombshell: The program was far more extensive than previously thought, gathering data on all Americans' electronic communications -- and specifically targeting news organizations, journalists and bloggers. (Image courtesy textuality.com)


(Posted 5:00 a.m. EST Monday, January 26, 2009)

By SKEETER SANDERS

Former President George W. Bush's highly controversial warrantless electronic eavesdropping program was far more extensive than previously thought, indiscriminately gathering data on all Americans' telephone, Internet and fax communications without court warrants -- with particularly intensive scrutiny placed on news organizations, journalists and bloggers -- according to a former U.S. intelligence official.

Russell Tice, a former signals intelligence officer for the super-secret National Security Agency, said that despite the Bush administration's claims to the contrary, "The NSA had access to all Americans' communications, faxes, phone calls and their computer communications -- and it didn't matter whether you were in Kansas in the middle of the country and you never made any . . . foreign communications at all. They monitored all communications."

Appearing on MSNBC's "Countdown with Keith Olbermann" on Wednesday -- just a day after Barack Obama was sworn in as the nation's 44th president -- Tice, who was one of the sources who helped The New York Times reveal the program's existence three years ago, said he had warned Congress in 2005 that the program violated the Fourth Amendment of the Constitution and the 1978 Foreign Intelligence Surveillance Act.

That action cost Tice his job -- and led to what he said was a campaign of harassment and intimidation by the Bush administration against Tice and other whistleblowers.

If Tice's accusations are confirmed, then the scope of the Bush administration's warrantless eavesdropping program went far beyond that of a similar program implemented in the early 1970s by the Nixon administration against domestic radicals and other opponents of the U.S. war effort in Vietnam -- a program the Supreme Court unanimously declared unconstitutional in 1972.

WHISTLEBLOWER: NSA HAS FILES OF JOURNALISTS' PHONE CALLS, E-MAILS

Although Tice "has already stood up for truth" by being one of the sources for the Times expose of the Bush administration's "eavesdropping on American citizens without warrants," Olbermann told viewers, the former NSA official waited until now to come forward publicly and reveal the full extent of the program, fearing harsh reprisals if he had done so while Bush remained in office.

Tice said that part of his job was to monitor the telephone calls, e-mails, text messages, faxes and other electronic communications of organizations that had nothing to do with protecting the country against terrorism, ostensibly to rule them out as potential threats. "What I was finding out, though, is that collection [of data] on those organizations was [happening] 24/7, you know, 365 days a year -- and it made no sense," he told Olbermann.

Asked by Olbermann what organizations were the subject of monitoring, Tice revealed that the eavesdropping included "U.S. news organizations, reporters and journalists."

"Is there a file somewhere of every e-mail sent by all the reporters at The New York Times?" Olbermann asked. "Is there a recording somewhere of every conversation I've had with my little nephew [who lives] in upstate New York?"

"If it was involved in a specific avenue of collection, it would be everything," Tice replied. "Yes, it would be everything."

Tice added that while he was sure that the collection "was digitized and put on databases somewhere," he didn't know what was done with the information beyond that point.

Tice also told Olbermann that the NSA "tailored some of their briefings" with the House and Senate committees on intelligence "to try to be deceptive, whether to a congressional committee or someone [the agency] didn't want to know what was really going on.

"There'd be a lot of bells and whistles in a briefing and quite often the meat of the briefing was deceptive," he said.

Asked why he decided to come forward, Tice replied, "I raised my hand, just like the president, and my oath was to support and defend the Constitution -- not the director of an agency, not a classification on a piece of paper, but the Constitution of the United States. These things that were happening were against the law."

TICE WARNED CONGRESS IN '05 THAT SPY PROGRAM WAS ILLEGAL

While Tice's revelations on "Countdown" marked the first time the former NSA analyst had appeared in public, his efforts to halt what he considered to be illegal actions by the Bush administration had been ongoing for just over three years.

On December 18, 2005 -- two days after the Times story was published -- Tice sent a letter to both the Senate and House intelligence committees, in which he characterized the NSA spying as "akin to violating a sacred oath," the alternative news site AlterNet reported Saturday in its own story about the former NSA analyst's MSNBC appearance.

The Web site quoted from Tice's letter:

"As a Signals Intelligence (SIGINT) officer, it is continually drilled into us that the very first law chiseled in the SIGINT [is] equivalent of the Ten Commandments: 'Thou shall not spy on American persons without a court order from FISA [the Foreign Intelligence Surveillance Court].' This law is continually drilled into each NSA intelligence officer throughout his or her career. The very people that lead the National Security Agency have violated this holy edict of SIGINT . . ."

The Tice letter went on:

"In addition to knowing this fundamental commandment of not violating the civil rights of Americans, intelligence officers are required to take an oath to protect the United States Constitution from enemies both foreign and domestic. It is with my oath as a U.S. intelligence officer weighing heavy on my mind that I wish to report to Congress acts that I believe are unlawful and unconstitutional. The freedom of the American people cannot be protected when our constitutional liberties are ignored and our nation has decayed into a police state."

N.Y. TIMES REPORTER WHO BROKE STORY: 'I WAS TARGETED'

The following night, Tice appeared on "Countdown" again, this time accompanied by James Risen, the New York Times reporter who broke the NSA wiretapping story.

Risen, who won a 2007 Pulitzer Prize for his expose and has since co-written a book about the scandal with fellow Times reporter Eric Lichtblau, told Olbermann that he had little doubt that he became a target of government surveillance.

Risen told Olbermann that although he did not know which agency had him under surveillance, "what I do know for a fact is that the Bush administration got my phone records . . . We know for a fact that they showed my phone records to other people in the federal grand jury, and we have asked the court to investigate that."

Risen was subpoenaed by a federal grand jury to try to force him to reveal his confidential sources for his book, State of War: The Secret History of the CIA and the Bush Administration.

Risen is one of several top journalists who were, according to Tice, placed under continuous electronic surveillance, including The Washington Post's Bob Woodward, CNN's Christiane Ananpour, MSNBC's Chris Matthews and Olbermann, Newsweek magazine's Michael Isikoff and The New Yorker magazine's Lawrence Wright, to name a few.

Risen says he believes that the point of the program's spying on journalists was not so much to intimidate them from exposing questionable government policies, but rather to intimidate their whistleblowing sources into silence. "We [journalists] have a large organization to support us . . . whistleblowers don't have that," he said.

"It's [the surveillance] aimed at frightening people in the government from talking . . . to have a chilling effect on potential whistleblowers in the government to make them realize that there's a Big Brother out there that will get them if they step out of line," Risen continued.

AL-JAZEERA NO. 1 ON BUSH'S SPYING LIST

In the days following the MSNBC broadcast, The 'Skeeter Bites Report has subsequently learned that the Washington bureau of the Qatar-based al-Jazeera TV news network came under the closest scrutiny of all media organizations.

Al-Jazeera, which launched an English-language channel in November 2006, has long been accused by Bush administration officials -- particularly former Defense Secretary Donald Rumsfeld -- of being a propaganda tool for the al-Qaida terror network, because its Arabic-language channel frequently received audio and video recordings from Osama bin Laden and other al-Qaida leaders.

In 2003, as the U.S.-led invasion of Iraq unfolded, an al-Jazeera correspondent was killed when a missile fired by a U.S. warplane struck the al-Rashid Hotel in Baghdad, which housed the network's bureau and scores of other foreign journalists -- the same hotel from where CNN broadcast live, albeit audio-only, coverage of the opening hours of the 1991 Gulf War. The Arab network to this day believes that its Baghdad bureau was deliberately targeted.

Bush even considered sending U.S. warplanes to bomb al-Jazeera's Qatar headquarters in 2004 but backed off after vehement opposition by then-Prime Minister Tony Blair of Britain, according to a leaked British government memorandum that made front-page banner headlines in London.

Ironically, al-Jazeera's English-language network experienced a dramatic 600 percent increase in worldwide viewership during Israel's 22-day offensive in the Gaza Strip -- with 60 percent of that increase coming from American viewers, despite the channel being available in the U.S. only on the Internet and on three cable systems, according to Amazon.com's Alexa Web tracking site.

Just as CNN scooped the world by having the only live coverage from Baghdad during the opening hours of the Gulf War, al-Jazeera scooped the world by having the only live coverage -- with pictures -- from inside Gaza throughout the 22-day Israeli offensive, while other global TV networks were barred by Israeli authorities from sending reporters into the densely-populated strip.

BUSH SPYING GOES FAR BEYOND NIXON PROGRAM IN '70S STRUCK DOWN BY HIGH COURT

Since its inception in December 2005 -- just a week before the Times revealed the Bush administration's warrantless eavesdropping program's existence -- The 'Skeeter Bites Report has pointed out repeatedly that the program was every bit as unconstitutional as a similar warrantless spying program instituted in the early 1970s under then-President Richard Nixon.

Nixon's Justice Department, under then-Attorney General John Mitchell, had overheard telephone conversations of anti-Vietnam War activists and other domestic radicals "to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of government."

Mitchell argued that the surveillance was lawful, even though it was conducted without prior judicial approval, "as a reasonable exercise of [Nixon's] power, exercised through [Mitchell], to protect the national security."

The Nixon program was unanimously declared unconstitutional by the Supreme Court in 1972. The justices ruled that it violated the Fourth Amendment's ban on "unreasonable searches and seizures" by the government.

Justice Lewis Powell, writing for the court, declared that "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses...

"These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillance may be conducted solely within the discretion of the Executive Branch," Powell continued. "The Fourth Amendment does not contemplate the executive officers of government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate and to prosecute.

"But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks," Powell wrote."The historical judgement, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressure to obtain incriminating evidence and overlook potential invasions of privacy and protected speech."

APPEALS COURT EXPANDED RULING TO INCLUDE FOREIGN INTELLIGENCE

The high court's unanimous decision -- which covered only domestic intelligence -- was bolstered in 1975 by an equally unanimous ruling by the U.S. Court of Appeals for the District of Columbia, the nation's second-highest court, which declared the Fourth Amendment's ban on warrantless domestic spying also applied to foreign intelligence gathering by the government on U.S. soil.

The seven-member appeals court ruled that even where foreign affairs and national security were involved, the government must obtain court warrants before it can eavesdrop on the communications of domestic organizations or individual U.S. citizens who were neither agents of or collaborators with foreign powers.

Based on the appeals court's unanimity under the Fourth Amendment -- which mirrored that of the Supreme Court's decision three years earlier -- the administration of then-President Gerald Ford chose not to appeal to the Supreme Court, apparently fearing that it would lose. Instead, Ford ordered the Justice Department to comply with the court's decision.

Ford even indicated that he would support legislation in Congress to require court warrants for all electronic eavesdropping by the government -- in part, paving the way for the passage of the Foreign Intelligence Surveillance Act a year after Ford left office in 1977.

Yet only the American Civil Liberties Union -- and this blogger -- appear to have remembered the fact that the Bush warrantless spying program is, at the very least, every bit as questionable constitutionally as the Nixon program of nearly four decades ago. The ACLU, in fact, has a lawsuit pending in U.S. District Court in New York to have the program struck down under the Fourth Amendment.

A QUESTION SO FAR UNANSWERED: WHAT WILL OBAMA DO?

However, the ACLU lawsuit could be rendered moot if the Obama administration acts to either halt the program or -- more likely -- force the NSA and other intelligence-gathering agencies to comply with the Constitution and FISA law and obtain court warrants.

In his first few days in office, President Obama has so far said nothing, at least publicly, about the NSA spying. Tice told Olbermann that he even volunteered his services to the Obama team during the 2008 election campaign, but that "they never really utilized me."

Having been in power for only a week, it's too early to know what the new administration will do. Even the ACLU has been preoccupied with the new administration's decisions regarding the closing of the Guantanamo Bay detention camp in Cuba and Obama's executive orders halting interrogation tactics against terror suspects that he has publicly denounced as torture.

There is also what appears to be an increasing likelihood of a fight in the Senate over the nomination of Eric Holder as the nation's next attorney general.

Some conservative Senate Republicans -- hard-line Bush loyalists -- are not-so-subtly raising the threat of a filibuster to block Holder's confirmation unless he agrees not to prosecute members of the Bush administration for alleged war crimes stemming from the treatment of terror suspects at Guantanamo Bay and the Abu Ghraib prison in Iraq.

Not to mention the Bush administration's warrantless spy program.

It remains to be seen whether these conservatives will make good on their filibuster threat, running the risk of being accused of obstructionism, even blackmail, against the new administration -- and whether they'll have enough votes on the Senate floor to sustain it.

But one thing remains clear: The Obama administration -- however great its desire to usher in a climate of bipartisan cooperation and end the bitter rancor that has poisoned Washington for the past 30 years -- has a legal obligation to get to the bottom of the Bush administration's illegal and unconstitutional activities and hold its officials accountable for those activities, regardless of the political consequences.

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Volume IV, Number 7
Copyright 2009, Skeeter Sanders. All rights reserved.

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