Wiretap Denial a Criminal Cover-Up
By Jon Eisenberg
Friday 10 August 2007
Eight words: "These calls are not intercepted within the country." That's how President Bush has described the so-called "Terrorist Surveillance Program" - the president's warrantless wiretapping of communications between persons inside and outside the United States when the government claims a link to al-Qaida. The president said this during a press conference on Dec. 19, 2005, three days after The New York Times revealed the program's existence.
But now it seems those eight words weren't true. In fact, they concealed unlawful conduct.
Over this past weekend, Congress passed a hastily drafted bill amending FISA - the Foreign Intelligence Surveillance Act of 1978. One of the bill's key provisions amends FISA to allow warrantless wiretapping whenever the target of the surveillance is "a person reasonably believed to be located outside the United States."
In little-noticed testimony before a Senate committee on May 1, director of national intelligence Mike McConnell disclosed the reason why the White House wanted this amendment. He said: "When seeking to monitor foreign persons suspected of involvement in terrorist activity who are physically located in foreign countries, the intelligence community is required under today's FISA to obtain a court order to conduct surveillance." At the same hearing, National Security Agency director Keith Alexander explained that a FISA warrant is required because the communication is "collected in the United States."
Alexander was referring to a provision in FISA that requires a warrant for electronic surveillance if "such acquisition occurs in the United States." At FISA's inception in 1978, the interception of most communications between persons inside and outside the United States occurred outside the United States. In the 21st century, because of technological innovations, such communications pass through switching stations within the United States, where they are subject to interception - thus bringing them within the scope of FISA's warrant requirement. That's what Sen. John Boehner was referring to when he told Fox News on Aug. 2 that a recent court ruling prohibits electronic surveillance "where the communication could come through the United States."
But this means it's untrue that, as the president previously told us, "These calls are not intercepted within the country." They are. That's what has made their warrantless interception unlawful. And that's why the White House wanted this weekend's amendment - to exclude such communications from FISA and its warrant requirement if the person targeted is located outside the country.
President Bush has been untruthful to the American people before, perhaps most infamously in his 2003 State of the Union address, where he uttered these 16 words to back up his claim that Iraq had weapons of mass destruction: "The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa." As former ambassador Joseph Wilson revealed in The New York Times on July 6, 2003, those words were untrue, and the White House knew it.
The president's 16-word falsehood about Iraq in January 2003 helped take us to war. Although the claim might have been morally repugnant, technically it was not a criminal cover-up.
But the president's eight-word falsehood in December 2005 is something else entirely. If it is true that the Terrorist Surveillance Program intercepted communications from switching stations inside the United States, that means each warrantless interception was a criminal violation of FISA - a felony, punishable by up to five years' imprisonment. And that means the president's false assertion that "these calls are not intercepted within the country" was arguably a cover-up, in that the true facts reveal unlawful conduct.
Some fine-tuning of FISA is indeed overdue. There is no disputing that legislation governing the protection of national security must keep pace with today's rapid advances in technology. But, under the rule of law that prevails in America, the right way to deal with an outdated act of Congress is to update it, not to ignore it. Regardless of whether this weekend's amendment is a good solution, the president's prior flouting of FISA definitely was not. Nor was his untruthful statement on Dec. 29, 2005. As the United States Supreme Court said in its 1974 decision rejecting President Nixon's claims of absolute executive privilege, no American - not even the president - is above the law.
Jon Eisenberg represents the now-defunct US arm of the Al-Haramain Islamic Foundation, a Saudi charity that was shut down by Saudi authorities after the US Treasury Department declared it a terrorist organization that was allegedly funding al-Qaeda. Eisenberg sued the US government in Portland, Ore.'s federal court, alleging the National Security Agency had illegally intercepted telephone calls without warrants between Soliman al-Buthi, the Saudi national who headed Al-Haramain's US branch, and his two American lawyers, Wendell Belew and Asim Ghafoor. The case is scheduled to be heard by the 9th Circuit Court of Appeals in San Francisco next week.