On Friday night, the Justice Department released memos, “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,” according to the Washington Post..
The memos were obtained by the American Civil Liberties Union (ACLU) through a Freedom of Information Act lawsuit. They were written by former Assistant Attorney General Jack Goldsmith, who was head of George W. Bush’s Office of Legal Counsel, and give more insight into the reasoning behind the secret program that began after the 9/11 attacks.
In a redacted 108-page memo from May 2004, Goldsmith wrote:
“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.”
In the same memo, Goldsmith said, “Even in peacetime, absent congressional action, the president has inherent constitutional authority … to warrant foreign intelligence surveillance.”
He also wrote that the program, codenamed Stellar Wind:
“comes squarely within the commander in chief’s authority to conduct the campaign against Al-Qaeda as part of the current armed conflict and that congressional efforts to prohibit the president’s efforts to intercept enemy communications through Stellar Wind would be an unconstitutional encroachment on the commander in chief’s power.”
Patrick Toomey, staff attorney for the ACLU said, “What these memos show is that nearly three years after President Bush authorized the warrantless wiretapping of Americans’ e-mails and phone calls, government lawyers were still struggling to put the program on sound legal footing,” the Post reported.
“Their conclusions are deeply disturbing,” said Toomey. “They suggest that the president’s power to monitor the conclusions of Americans is virtually unlimited — by the Constitution, or by Congress — when it comes to foreign intelligence.”
Goldsmith said that Congress’s 2001 Authorization for the Use of Military Force (AUMF), by “authorizing ‘all necessary and appropriate force,’ … necessarily included the use of signals intelligence capabilities, which are a critical, and traditional, tool for finding the enemy so that destructive force can be brought to bear on him.”
A second memo, this one from July 2004, used a recent Supreme Court decision regarding the capture of a US citizen fighting in Afghanistan to provide further justification for Stellar Wind.
Goldsmith wrote the five justices in the decision “agreed that Hamdi’s detention was authorized because it is a ‘fundamental’ and ‘accepted’ incident of war,” according to the Post.
“Because the interception of enemy communications for intelligence purposes is also a fundamental and long-accepted incident of war, the [AUMF] likewise provides authority for Stellar Wind,” the memo read.
Toomey pointed out that the Court’s decision did not mention wiretapping within the US.
“Unfortunately, the sweeping surveillance they sought to justify is not a thing of the past,” Toomey said. “The government’s legal rationales have shifted over time, but some of today’s surveillance programs are even more broader and intrusive than those put in place more than a decade ago by President Bush.”