Bush-era memos: president can wiretap Americans at all times

The US Justice Department has released two memos detailing the Bush administration's legal justification for monitoring the phone calls and emails of Americans without a warrant.

The documents, released late Friday, relate to a secret program dubbed Stellar Wind that began after the September 11, 2001 attacks.

It allowed the National Security Agency to obtain communications data within the United States when at least one party was a suspected Al-Qaeda or Al-Qaeda affiliate member, and at least one party in the communication was located overseas.

"Even in peacetime, absent congressional action, the president has inherent constitutional authority ... to order warrantless foreign intelligence surveillance," then-assistant attorney general Jack Goldsmith said in a heavily redacted 108-page memo dated May 6, 2004.

"We believe that 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."

The document was obtained by the American Civil Liberties Union rights group through a Freedom of Information Act lawsuit.

Goldsmith at the time also headed the Justice Department's Office of Legal Counsel under then-attorney general John Ashcroft and then-deputy attorney general James Comey, who now heads the FBI.

According to Goldsmith, Congress's authorization for the use of force passed shortly after 9/11 provided "express authority" for Stellar Wind.

"In authorizing 'all necessary and appropriate force,' the authorization necessarily included the use of signals intelligence capabilities (wiretapping), which are a critical, and traditional, tool for finding the enemy so that destructive force can be brought to bear on him," Goldsmith wrote.

He suggested that the congressional approval granted the president authority that "overrides the limitations" of the Foreign Intelligence Surveillance Act (FISA), a law requiring a court order to monitor the communications of any American or person on US soil.

The second memo, dated July 16, 2004, pointed to a Supreme Court decision handed down just over two weeks earlier as providing additional justification for Stellar Wind.

Goldsmith noted that five of the Supreme Court justices agreed that the detention of US citizen Yaser Esam Hamdi, who was captured while fighting in Afghanistan, was authorized because it was a "fundamental" and "accepted" incident of waging war.

"Because the interception of enemy communications for intelligence purposes is also a fundamental and long-accepted incident of war, the Congressional Authorization likewise provides authority for Stellar Wind targeted content," he added.

The program was brought under FISA court supervision in 2007, six years into its existence. Its was first revealed by The New York Times in 2005.


Explore further

Lawsuit seeks access to more secret court opinions

© 2014 AFP

Citation: Bush-era memos: president can wiretap Americans at all times (2014, September 6) retrieved 16 June 2019 from https://phys.org/news/2014-09-bush-era-memos-wiretap-americans.html
This document is subject to copyright. Apart from any fair dealing for the purpose of private study or research, no part may be reproduced without the written permission. The content is provided for information purposes only.
0 shares

Feedback to editors

User comments

Sep 06, 2014
Funny the US Justice Department under Obama release Bush Era Memo's......So the Justice Department can find memo's from 2004, but can't find emails from (I can no longer remember the exact number of employees,as it keeps growing daily, who have had their computer hard drives crash without backing them up, or having their emails stored on servers) the IRS that shows corruption, the Justice department also can't find guns it gives to Mexican Drug dealers.....

Whether or not Bush did anything wrong, that was in 2004..... Can someone please investigate the corruption and abuse of power of the Democrats and the Obama Administration? Oh wait, the Justice department is so focused on Bush and Law abiding Conservatives that it is too busy to investigate current corruption.

Sep 06, 2014
The US Gov now reserves the right to kill any citizen, to arrest any citizen, to seize any citizen assets, to force any citizen into labor without pay, to obstruct citizen meetings, and to confiscate citizen firearms. This is fascism in full display. The Patriot Act (NOTpatriotic) is a Fascist Manifesto which was imposed to buttress the formation of the American Gestapo

Freethinker you're like an untouchable that's been paid off by Al Capone and defends him at all costs

Sep 06, 2014
Even in peacetime, absent congressional action, the president has inherent constitutional authority ...
Whenever someone talks about 'inherent authority', you should be very alert.
it's nothing else but claiming 'divine right', 'manifest destiny' and similar PR-blurb that is designed to confer legality where none exists.

Sep 06, 2014
Our SCARED conservatives gave us multiple wars, torture of those unable to resist, the mass killing of 200,000 Iraqi civilians who had done nothing to us, and the Bush Police State in which we are all suspects in our own country, . . . all because of the character deficiencies of greed and the need for self-righteous violence.

Sep 06, 2014
Look up Room 641A of the ATT Building in San Francisco and the ABC News story on it.

Then, check the date.

I was a technician on the Electronic Battlefield in the Vietnam War, using Electronic "Reconnaissance".

Sep 06, 2014
Back in the old days Hitler was also given "... inherent constitutional authority...". If it fits their needs use it. As Bush would say "Mission Accomplish" and Cheney would eloquently say "SO". The real danger is the quality of the leaders.

Sep 07, 2014
Look up Room 641A of the ATT Building in San Francisco and the ABC News story on it.

Then, check the date.

I was a technician on the Electronic Battlefield in the Vietnam War, using Electronic "Reconnaissance".

What's the point you are trying to make, here?

Sep 07, 2014
Look up Room 641A of the ATT Building in San Francisco and the ABC News story on it.

Then, check the date.

I was a technician on the Electronic Battlefield in the Vietnam War, using Electronic "Reconnaissance".

What's the point you are trying to make, here?


http://en.wikiped...oom_641A

Sep 07, 2014
Look up Room 641A of the ATT Building in San Francisco and the ABC News story on it.

Then, check the date.

I was a technician on the Electronic Battlefield in the Vietnam War, using Electronic "Reconnaissance".

What's the point you are trying to make, here?

We have lost Democracy already.

Sep 07, 2014
In 1967 I helped put together,test, deploy and operate the Electronic Battlefield for Sec. Def. MacNamara. We had battlefield orbits at about 22,000 feet while we listened to what the Commies were saying and doing on the ground miles away.

Most Americans have no idea the power afforded the government by the illegal use of technology against us. Do not trust the government. It has not been cleaned up after Bush, and the crooks are still there.

Sep 07, 2014
In 1967 I helped put together,test, deploy and operate the Electronic Battlefield for Sec. Def. MacNamara. We had battlefield orbits at about 22,000 feet while we listened to what the Commies were saying and doing on the ground miles away.

Most Americans have no idea the power afforded the government by the illegal use of technology against us. Do not trust the government. It has not been cleaned up after Bush, and the crooks are still there.

You know, Eisenhauer did warn us about this in the late 50's...

Please sign in to add a comment. Registration is free, and takes less than a minute. Read more