Why Bush Cancelled Warrantless Wiretapping Program

Some of you may remember this story, from mid-January (covered by Doug here). The tone of the story is that Bush backed down to pressure from Democrats and the American public, and realized that his program might be over the line.

The Bush administration said yesterday that it has agreed to disband a controversial warrantless surveillance program run by the National Security Agency, replacing it with a new effort that will be overseen by the secret court that governs clandestine spying in the United States.

The change — revealed by Attorney General Alberto R. Gonzales in a letter to the leaders of the Senate Judiciary Committee — marks an abrupt reversal by the administration, which for more than a year has aggressively defended the legality of the NSA surveillance program and disputed court authority to oversee it.

Administration officials suggested that the move was aimed in part at quelling persistent objections to the NSA spying by Democrats who now control Congress and that it is intended to slow or even derail challenges making their way through the federal courts. The Justice Department immediately filed a notice with the U.S. Court of Appeals for the 6th Circuit yesterday informing the panel of the new program and promising to file papers “addressing the implications of this development” on pending litigation.

I didn’t quite buy it then… Bush is a “decider” and once he’s made a decision, it rarely changes. So for him to give up a power that he believes he has seemed a bit strange.

And today we find out why, as he backed down not out of respect for the rule of law or the Constitution, but because a judge forced his hand:

A federal intelligence court judge earlier this year secretly declared a key element of the Bush administration’s wiretapping efforts illegal, according to a lawmaker and government sources, providing a previously unstated rationale for fevered efforts by congressional lawmakers this week to expand the president’s spying powers.

House Minority Leader John A. Boehner (R-Ohio) disclosed elements of the court’s decision in remarks Tuesday to Fox News as he was promoting the administration-backed wiretapping legislation. Boehner has denied revealing classified information, but two government officials privy to the details confirmed that his remarks concerned classified information.

The judge, whose name could not be learned, concluded early this year that the government had overstepped its authority in attempting to broadly surveil communications between two locations overseas that are passed through routing stations in the United States, according to two other government sources familiar with the decision.

The decision was both a political and practical blow to the administration, which had long held that all of the National Security Agency’s enhanced surveillance efforts since 2001 were legal. The administration for years had declined to subject those efforts to the jurisdiction of the Foreign Intelligence Surveillance Court, and after it finally did so in January the court ruled that the administration’s legal judgment was at least partly wrong.

Now, because of the secretive nature, a lot of the timeline is missing here. It is unclear whether the judge’s final ruling came before or after the Administration changed their tune, but portions of the letter Gonzales released on Jan 17 did refer to orders by a judge handed down on Jan 10.

Either way, it’s clear that this was not the administration backing down from wrongdoing, this was the administration being forced into compliance.

Which, frankly, is the only way to get this administration to do anything it doesn’t want to do.

  • somebody

    So I guess it was worth it for the commies to win in 2006.

  • Laughing at somebody

    “Commies?” The internet is full of retards, but it’s rare to see one from the 1960s.

  • mark Starr

    What kind of idiot would post a comment that commies won on 2006. Conservatives excel at name calling and ridiculous statements, they usually are completely unaware of any facts and blindly follow what their hero’s tell them. Bush has been illegally spying on American Citizens, he has lied to get us into war, holds innocent people in prisons with out charging them with a crime.Destroyed our economy, environment,standing in the world. The list goes on. I challenge fools who are always calling people who do not agree with them commies to do some investigating if they are capable of reading.

  • Mcph

    Thanks to “somebody” for reminding me how we ended up in the fix we are in…if Janet Reno had been caught spying on Tim McVeigh or Randy Weaver, he would have called for her impeachment. But if a republican wants to do spy on people, no problemo.
    How you must miss the commies.

  • windrider

    Somebody’s comment proves that McCarthyism is still attracting a few stragglers. Got your John Birch Society membership card yet, somebody?

  • http://unrepentantindividual.com/ Brad Warbiany

    Mark Starr: Bush has been illegally spying on American Citizens, he has lied to get us into war, holds innocent people in prisons with out charging them with a crime.Destroyed our economy, environment,standing in the world.

    Oddly enough, most of those things are hallmarks of communist governments. Stasi, KGB, secret prisons, Pogroms, as well as destroying the economy, environment, etc…

    This isn’t to excuse the Democrats for their authoritarian policies, but it’s not like Bush’s were pro-freedom.

  • Doc

    Please remember this is America, this is a win vrs the communist/nazi oversight and reform division of the the governing body. We stand for liberties and freedoms, not for just America(n’s) but for the world, as an Iowan I can state “OUR liberties we prize and our RIGHTS we will MAINTAIN!”, among which many have been stepped on my this administration. The Elephants in power have eaten, trampled, or deficated on our great nation for too long. Time has come to put these beasts to pasture, and restore the beauty our nation once had on the world. Perhaps someday we will live up to our own laws and standards and tell everyone else we are prepared to live up to the laws and standards we help draft for the world, and the recent dark history of unlawful detention and torture was a mistake made by previous Dictators and a mistake we condoned with our own. Hang your head in shame, somehow, he was re-elected to dig us a bigger mass grave(for our troops/Iraqis/and our liberties) all for the energy policy which perpetuates profits, Climate Destruction, and dividing the classes(richer and poorer). How many solar cells could the Iraq war budget buy(energy independance starts at home)? And you ever wonder what happens to the “tons of cash” that goes missing under this administration(katrina relief, 9/11, Iraq reconstruction).
    Normally I feel safer with my national guard at home protection the nation from such natual disasters (hurricanes, tornadoes, wildfires, bridge collapses) perhaps the orange level security threat to the U.S. will pass to green(safe) once the Donkeys are able to boot out some bad apples, God only knows you wont see safety with this administration(he knows and he continues to test and warn us).

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    Unsurprising that the Bush administration would do that. It’s gotten to the point that anytime I hear Bush take a policy position that sounds good I automatically assume he’s either been forced to take that position against his will, he’s been misquoted by the press, or he’s simply lying. And 90+% of the time one of those three things turns out to be the case.

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  • windrider

    I never thought I’d miss Goldwater, but boy, I sure wish he were here to take his party by the scruff of their necks and shake some decency and honesty into them (not to mention some respect for the Constitution). Today’s faux conservatives are nothing but retrogressionists who want to crawl back into the past century and drag the rest of us along with them.

  • UCrawford

    I think that if Goldwater were around today he’d likely walk into the White House and drop our draft-dodging, pro-conquest VP with one punch…after which he’d start bitch-slapping the president until Dubya began blubbering like a small child and promised to resign.

    Seriously, though, I think that Goldwater by this point would be a vehement proponent of starting impeachment proceedings. I can’t imagine he’d be able to stomach what Bush has been doing to both the country and the GOP. According to that documentary on him, he was largely responsible for dropping the hammer on Nixon after all.

  • Jay O’Callaghan

    I just read one poster’s list of Bush’s sins. First, he says, is that Bush has been spying on American citizens, but the main article above says that he was trying to surveil communications between two overseas locations that pass through the U.S. – which is not the same thing. Besides, the latter sounds like something he should be doing. Second is that Bush lied to get us into war. I’d really like to see some proof on that. Everyone thought Iraq had weapons of mass destruction and none of the countries that opposed the war said anything to the contrary that I ever heard of. I think a better explanation is that in the aftermath of 9/11, Bush assumed and acted upon a worst case scenario based on the intelligence he was given. Third is that Bush has held innocent people in prison without charges. I’m not sure how the poster has conclusively established their innocence or even how many there are, but I’ll bet Bush’s record on imprisoning innocent people is not nearly as bad as most States. Fourth is that Bush has destroyed the economy. Clearly he hasn’t. The economy is doing quite well. Same for the environment which the poster also accuses Bush of destroying. Finally, Bush is said to have destroyed our standing in the world. I don’t think so. A lot of people in other countries who dislike Bush intensely still like the U.S. and its people. In any event, strong anti-Americanism didn’t start with Bush and it will not end with him. The poster concludes by saying that his list goes on. I’m sure it does. I just wonder if there are any items on it that are not apocalytic overstatement.

  • UCrawford


    1) If the eavesdropping was done on a relay station in the United States without a warrant or specific individual targeted it is by law exactly the same as eavesdropping on U.S. citizens. I’m guessing that you never worked for the NSA or in SIGINT, otherwise you’d realize that.

    2) Yes, “everyone” thought that Saddam was probably pursuing a WMD program and suspected he might have something. Well except for the U.N. inspection team who said that he didn’t. So no, on the WMD angle they didn’t lie. They exaggerated the evidence they had, ignored anyone who contradicted them, and scare-mongered on the threat, even though their own intel community told them their case wasn’t as solid as what they were telling the public. The lie came when they told the public that Saddam was in cahoots with al-Qaeda, because they had absolutely no evidence of such an operational link and plenty of reason to believe it wasn’t so. Didn’t keep them from continually claiming they had solid proof of a relationship, until after the invasion when the press and intel community completely discredited it. And it hasn’t kept them from continually insinuating that there was a link between 9/11 and Iraq now, even though Bush openly admitted that al-Qaeda and Saddam weren’t working together. Basing your case for war on a justification you knew to be unproven, and repeating that justification after you knew it to be false DOES qualify as a lie.

    3) Brad doesn’t have to prove the innocence of the detainees, particularly those who are U.S. citizens. The government has to prove their guilt. That’s what the entire system of criminal law in our country is based on and the fact that Bush is detaining U.S. citizens indefinitely without charge and submitting them to “aggressive interrogation”, combined with running a wiretapping program that FISA (who usually act as a rubber stamp) called illegal indicates that he doesn’t particularly care about the rule of law. Brad is absolutely correct on his post. So I’m going to go out on a limb and guess that you don’t read much about how the legal system works…that or you just don’t care about the rule of law.

    4) I’ll agree with you that Bush hasn’t destroyed the economy and the environment, although I’ll argue that he’s wasted a lot of taxpayer dollars in Iraq. But then again Brad never actually said that he did. So nice straw man argument, irrelevant though it was. Same thing with your WMD comments by the way.

    5) The rest of the world “intensely still likes” the U.S.? So I guess this means you don’t really travel out of country much either. England’s usually cited as our closest ally, and anti-Americanism drastically increased in that country after the Iraq invasion. Try reading the British papers from time to time, they’re available online after all. They’re not particularly fond of us over there because we put George W. Bush in office…twice. And they don’t “dislike” Bush…they fucking hate him, even though that’s our strongest ally. So yes, Bush has destroyed America’s standing in the world with his incompetent Iraq war. And our standing will only start to improve the day after he leaves office. Oh, and of course Brad didn’t bring that up this point either (straw man).

    6) Apocalyptic overstatement? HA!!! Whether you agree with Brad or not, he cited links and sources to back up what he said. You wrote an ignorant rambling screed backed up by nothing. Try adding reputable sources or information to strengthen your case, or try arguing the points that were made in the post. At least then there’d be a reason to take you seriously.

  • Jay O’Callaghan


    My post was not in response to Brad but to Mark Starr — August 3, 2007 @ 3:44 pm.

    1.) You’re right, I’ve never worked at NSA or in SIGINT and figure I have a lot of company in that regard. Given the nature of the enemy, intercepting foreign to foreign communications coming through here still sounds like something any president should be doing.

    2.) I have a lot of trouble with the al-Qaeda argument. I remember the controversy leading up to the war and followed it closely. Bush’s main argument was the WMDs. I do not ever remember Bush arguing that Iraq was involved in 9/11, only that Iraq and al-Qaeda appeared to have some contacts and removal of Saddam Hussein was needed to prevent those contacts from developing into something more. The primary justification for the war were the supposed presence of WMDs.

    3.) Point taken about the presumption of innocence, but the poster didn’t say that, suggesting instead that their innocence was already proven. By the way, who exactly are the U.S. citizens that Bush has detained? How many of them are there?

    4.) The post I responded to did say, “Destroyed our economy, environment.” My message was not directed at Brad.

    5.) Again, I think you misread my message. I did not say that the rest of the world “intensely” likes us. I referred to its intense dislike of Bush. I do have friends in England and my comments that intense dislike of Bush has not affected feelings about the U.S. is based on what they have told me – and they have been blunt.

    Point taken that I should never post anything contrary without authoritative citations to back me up. Just wish that everyone would play by those rules. There might be a lot less apocalyptic overstatement.

  • UCrawford


    1) I actually did work in SIGINT for the military (and worked with the NSA) and regardless of the nature of the enemy there are still restrictions on what the government may or may not do in regards to surveillance. These restrictions are not in place to protect terrorists (despite what people like Bill O’Reilly or Sean Hannity would like to believe) but to protect us from our government. The FISA court exists to balance the security needs of the United States and the Constitutional rights of its citizens (they were formed as a result of the abuses of Nixon), they’re generally prone to err on the side of security especially in times of national emergency, and they still said that Bush’s program violated the law. That’s likely why he refused to submit his program to FISA inspection until he was forced to by Congress, and that’s why John Ashcroft (also someone who tended to err on the side of security) bucked the president and refused to sign off on it. Bush pushed a program he knew wouldn’t pass legal muster from a sympathetic court, he avoided oversight for as long as he could, and then he lied about his reasons for abandoning the program. He deserves to be called on it.

    2) Bush fervently pushed the Saddam/al-Qaeda link (http://www.cnn.com/2004/WORLD/meast/06/15/bush.alqaeda/) and he’s continuing to push the Saddam/al-Qaeda link (http://www.boston.com/news/nation/articles/2007/07/25/bush_stirs_backlash_citing_iraq_qaeda_link/) even though he knows the Saddam/al-Qaeda link is bullshit (http://abclocal.go.com/kgo/story?section=politics&id=4481247) mainly because it’s the only way he can justify continuing the war in Iraq now that it’s been proven the WMD never existed(http://www.cnn.com/2007/POLITICS/07/24/bush.terror/index.html?eref=rss_politics). Al-Qaeda, the WMD, Iran…it’s all a big house of cards of rationales for staying. If the president abandons one of those positions, then all the others collapse and everyone realizes that there was never a valid reason to go into Iraq in the first place and he goes down in history as the president who started an unjustified war and lost.

    3) Doesn’t matter if you, I or anyone else thinks they’re guilty. Until they’re proven guilty in a court of law or a reasonable facsimile thereof, they’re innocent. That’s what the presumption of innocence is all about, you don’t get to declare them guilty before the trial, before evidence is presented, and before they have a chance to defend themselves. That’s why they’re the “accused”. Problem is, though, that courts take time and money and lots of work and you have to provide the accused terrorists with a defense. And Bush never wanted to do any of that because then you start realizing just how many corners he cut. Why do you think the top military legal experts testified to Congress that the hackneyed tribunal system Bush was trying to push with the MCA wasn’t feasible? They knew that it was a kangaroo court. The Bush administration didn’t care about setting up a real legal system for the detainees because they see the law as something that gets in the way of the President’s decision making. That’s an unsurprising attitude, considering how many legal minds in the Bush administration are from Jerry Falwell’s joke of a law school. Here’s a link for you on some of the problems with the tribunal system (http://www.boston.com/news/nation/washington/articles/2007/06/23/officer_criticizes_military_tribunals/). As for how many Americans the government has detained without trial or charge, does it matter? They’re detaining people without trial or charge, and if they’re doing so it likely means they’re also doing it without reasonable evidence that these people have done anything wrong. In some cases, it appears they’ve actually made up reasons to detain people (http://en.wikipedia.org/wiki/Jos%C3%A9_Padilla_%28prisoner%29) and we should question just how solid their reasons for circumventing the law are. If they can do it to Padilla, they can do it to us, and that’s never something a free society should tolerate.

    4) I think Bush has hurt the economy by engaging us in a prolonged and useless war. But I won’t argue that he’s destroyed it, yet. Give that Medicare bill of his time, though. And his refusal to sign Kyoto was one of the smartest decisions of his administration. Granted that the bar is set pretty low…

    5) When I moved to England in 2000, I found it to be an exceptionally friendly place. The people were welcoming and they were generally positive towards Americans (they actually tended to prefer us to mainland Europe). They remained supportive after 9/11…even the protestor groups who picketed our base came to pay their respects and backed off on their protests. After Iraq, however, it all changed. Americans from my base were often accosted by hostile angry Brits. At least once a month I’d have someone try to pick a fight at the pubs because of my nationality. Our command started putting restrictions on where we could go on the island because of security concerns. Iraq fundamentally changed how the English viewed the U.S….but not because the Brits, or the Europeans or most of the world don’t want us to defend ourselves. They were supportive of the war in Afghanistan. They just don’t support the idea of the U.S. invading another country without sufficient justification. There were no weapons of mass destruction, al-Qaeda wasn’t in Saddam’s Iraq, and Iraq didn’t attack us. There was no reason for going in, and the way most of them saw it the United States’ foreign policy was no longer about protecting our interests and working with others…it was about forcing our way of doing things on other people. And they see Bush as someone who’s very willing to do that to anyone who opposes him. So yes, they hate him (plenty of the Brits told me so) same as most people hate a tyrant…and they don’t particularly like us for putting him in office, twice.

  • UCrawford

    I will say, though, that I suspect that America’s status in the world will drastically improve the day after Bush leaves office and that the damage world-wide likely won’t be as lasting as many of the worst doomsayers think. But Bush has done plenty of damage to our interests and I believe that there’s going to be a lot of long-term blowback for us in the Persian Gulf region as a result of the war in Iraq. That’s something that’s pretty much unavoidable now, no matter who takes over later on…but it wouldn’t have happened had Bush not given into his obsession with Saddam Hussein.

  • http://www.lunchworks.net Jeff Molby

    intercepting foreign to foreign communications coming through here still sounds like something any president should be doing.

    I don’t care much about the F2F stuff. It’s perfectly reasonable to consider that a routine part of war.

    The problem is that the very same program was also eavesdropping on F2D communications without any judicial oversight. The entire Bush family was crossed off my Christmas list the moment I heard about that.

  • UCrawford

    If the relays they were tapping were located in the United States, it doesn’t matter if both parties on that relay were foreign, the relay is still a domestic target and there are rules in place that the government must abide by on domestic targets. Bush apparently wasn’t abiding by those laws, and he was trying to avoid oversight because he didn’t want FISA to pull the plug.

  • UCrawford


    But I do agree with you about the F2F stuff. Outside the United States with non-U.S. targets I have no problem. That’s a legitimate activity for our government to be involved with.

  • UCrawford

    Congress just voted to make this a moot point:


    And the Democrats caved on oversight yet again because some Republicans yelled at Pelosi (http://www.cnn.com/2007/POLITICS/08/04/congress.fisa/), demonstrating why the Democrats’ “leadership” and party is such a pathetic joke. Considering that the new law strips oversight authority from FISA to ensure this program isn’t targeting U.S. citizens, I’ll be curious to see if Bush abuses his new powers. He’s promised he wouldn’t, but he has been known to lie before (http://thinkprogress.org/2006/10/22/bush-stay-the-course/)

  • Kirk Daughtry

    Finally…Bush has begun to reel in his unconstitutional mess…painfully slow, but the fact that he has reversed course shows just how frightened he is of the legal fall-out of his nightmare assault on our civil liberties.

    After my election fraud expose article entitled “Protect Your Voting Rights” was published in http://www.virtualcitizens.com on September 27th, 2007, I experienced electronic clicking sounds on my cell phone. My friends complained about the same thing happening to them, after receiving calls from me. This persisted from October until early February, when I left the US and traveled in Mexico, Belize, and Guatemala. I decided to leave the US for a while, because of the electronic surveillance and because the campus police where I completed my graduate studies informed me that they had been asked to keep an eye on me because I used the internet on campus frequently! How’s that for freedom of expression.

    My laptop computer was stolen in Antigua, Guatemala on June 5th, 2007 after my blog site which covered election fraud and related corruption issues had been up and running for almost three months. I received a veiled death threat from an individual who claimed to work in the US intelligence community. He knew my girlfriend’s nickname for me and he knew other personal information about me which meant he had been reading my electronic mail. When I persisted in writing my website, my photos were removed from the articles. As only empty frames were left behind, and since the next day’s headline news indicated that a global pornography ring had been busted in London, England, I figured that the people who I had blown the whistle on were planning to insert pornographic images into my empty blog phot frames. Given that they had my laptop, it would have been fairly simple for them to frame me. Needless to say, my family begged me to shut down the expose web site, so I did.

    The ironic thing about this is that my father and mother are friends with U.S. Senator John Cornyn, who is a member of the Senate Judiciary Committee. With all the time these paranoid warmongering sociopaths spent spying on me, you think they would have learned that my family is conected BEFORE they authorized their spook to make a veiled death threat.

    I am now in Kiev, Ukraine where I am waiting to meet my girlfriend, who is returning from Russia in early September, after spending time with her family in the aftermath of the death of her grandfather.

    I plan to remain out of the USA as long as our illegitimate President remains in office.

    Whistleblowers like myself are not safe when a tyrant sits in the oval office.

    In case you wonder what sensitive matters I wrote about on my blog site, I discovered expose websites which allege CIA involvement in smuggling cocaine into the US in order to fund the rigging of the 2004 elections.

    Apparently, CIA agents leaked this information to independent journalist Daniel Hopsicker. After reading Hopsicker’s articles on the matter, while doing graduate political science research on elections, I became obsessese with doing something about the scadal. I phoned over a dozen leadership offices in the House and Senate and San Antonio, Texas Radio Station KTSA, which ran related stories for the two weeks prior to the 2006 mid-term elections. My blog which the spooks forced me to tear down, was read by over 3000 people before our “freedom friendly” forced me to shut it down.

    I plan to live abroad and put the pieces of my life back together over time.

    I am posting this so that others who have been attacked by this truth-hating Bush Administration may also have the courage to stand up and speak from the roof tops about the corrupt nature of this administration.

    About ten days ago, I phoned CIA headquarters and informed them that I have 70 certified letters which are in safe places with trusted friends. Those certified packages contain my original article and the chronological story of what was done to me, because I became politically active in order to expose the fradulent nature of George W. Bush. They are addressed to 45 members of the US House and Senate Judiciary, Oversight, and Intelligence Committees.

    I plan to keep those packages “frozen” so long as the jerks who threatened to kill me leave me and my family alone. I believe that if I release this information en masse, at this time, that our frustratingly-slow Congress will waste a bunch of time trying to decide what to do, while the Bush crime family’s mafia buddies might be tempted to take a little revenge.

    I am also aware that if I pour too much truth fuel on the fire in Washington, that Bush’s spin machine will likely try to do a hatchet job on me, like he has already done with others like US Attorney Carol Lamb.

    In less than a year and a half, we have the chance to save our freedoms. Vote against those who accept special interest bribes and clean the oligarchs out of office!

    George W. Bush is living proof that absolute power corrupts absolutely.


    Vote with confidence. Vote on a paper ballot and volunteer to be an election observer or an election judge. I did, before I was chased out of the country by a Constitution hating Bush Administration. Now, I’ll have to content myself with just voting absentee, because I choose to live outside the electronic prison.

    There is a an ancient concept which is fitting to my story. To retreat when the odds are overwhelming is wise. When the time is right, one may face evil giants and prevail. Timing, is everything.

  • Kirk Daughtry

    oops…I discovered and error in my post.

    Line one of paragraph two should have given the date of 2006, rather than 2007.

    I apologize for any confusion this error may have caused.