On December 16, 2005, TheNew York Times ran a front-page story revealing that the Bush administration, since shortly after 9/11, had been allowing the National Security Agency (NSA) to wiretap -- without seeking a court warrant -- phone calls involving U.S. residents, provided that in each case: (a) at least one party to the call was situated overseas, and (b) the American was a known contact of a terrorist organization.
The left immediately condemned the program. Democrat Senator Barbara Boxer (of California) asked four presidential scholars to send her, “as soon as possible,” their opinions about whether President Bush's actions justified an impeachment. Boxer's California colleague, Dianne Feinstein, called for the Senate Intelligence and Judiciary Committees to investigate the wiretaps. Senator Harry Reid, too, wanted to schedule hearings. Federal judge James Robertson (a Bill Clinton appointee) resigned his judgeship in protest over Bush’s policy. Robertson previously had ruled, in the Hamdan v. Rumsfeld case, that al-Qaeda operatives may have the right to be tried in a civilian court of law rather than in a military tribunal -- thereby granting foreign jihadists the same constitutional rights that are given to all manner of common domestic lawbreakers. (Robertson was subsequently overturned on appeal.)
Leftist attacks on the NSA wiretapping program led to the widespread misconception that it somehow randomly targeted Americans regardless of their backgrounds. But in reality, President Bush had narrowly tailored his authorization to permit only the wiretapping of conversations that met the criteria listed in the first paragraph, above.
Another widely circulated falsehood was that the NSA wiretapping measure was somehow in violation of established U.S. law. In reality, surveillance without a warrant had already been the law of the land for a quarter-century, and had been upheld in court at least once during President Bush's first term: In 2002, citing an already 22-year-old precedent, the Federal Intelligence Surveillance Court of Review -- the court that oversees the process whereby the President authorizes the wiretapping of foreigners -- ruled that:
"[T]he president did have inherent authority to conduct warrantless searches to obtain foreign intelligence information ... We take for granted that the president does have that authority and, assuming that is so, FISA [the Federal Intelligence Surveillance Act] could not encroach on the president’s constitutional power."
Nor was Bush the first president to take this step, which many of his critics portrayed as "unprecedented." For instance, former Georgia Congressman Bob Barr told 60 Minutes that President Bill Clinton’s "Echelon" program had intercepted “literally millions of communications involving United States citizens.” Clinton also had authorized the NSA to wiretap and search the home of CIA spy Aldrich Ames. Soon thereafter, Clinton broadened the NSA’s authority to include “classified electronic surveillance techniques, such as infrared sensors to observe people inside their homes.”
Jamie Gorelick, a 9/11 Commission member and former high-ranking Clinton Justice Department official, had told the Senate Intelligence Committee in 1994: “The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.”
A few months later (on February 9, 1995), President Clinton signed Executive Order 12949, stating that “the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year.”
Precedence for warrantless wiretaps and searches antedated the Clinton administration as well. For example, Ronald Reagan had clearly recognized the government's right to spy on foreign intelligence agents without a warrant. And Jimmy Carter had signed Executive Order 12139 on May 23, 1979, declaring that “the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order.”
It is notable that prior to the publication of the New York Times story about the NSA wiretapping program, the Bush White House had briefed a host of key Democrats about it -- including Senate Minority Leader Harry Reid, Sen. Jay Rockefeller, Sen. Bob Graham, and Rep. Jane Harman. Yet none of them took to the Senate or House floor to denounce the measure -- until after the Times story broke.