MYTH: The president has the power to say what the law is.

REALITY: The courts have this power in our system of government, and no person is above the law, not even the president, or the rule of law means nothing. Under our democracy’s separation of powers, the president cannot act as judge or legislator. It is high school civics 101 that it is the province of the courts to say what the law is, the role of Congress to make law and the responsibility of the president to faithfully execute the law, not re-write it.[15] The president’s actions violate these fundamental principles. This is especially so because the laws controlling government eavesdropping on Americans are well-established and clear. Numerous legal experts as well as non-partisan researchers agree that the president’s actions have violated these laws.[16]

The administration has claimed that Congress was briefed and thus approved of the program, but the few Members of Congress who were told about the program were prohibited from telling anyone else about it, and some of those members expressed serious concerns at the time.[17] Strong concerns about the propriety of the program were not limited to Congress. It has been reported that some of the federal judges on the FISA court who learned of the program expressed objections to its legality. Even members of the executive branch, beyond those who blew the whistle on the program, have objected to it. For example, it has been reported that Acting Attorney General James Comey indicated he was unwilling to give his approval to certain aspects of the program. And the program apparently was audited only in advance of the presidential election for fear that a new president would prosecute those who participated in the program.

Nevertheless, President Bush has arrogated to himself the power to unilaterally and secretly ignore laws passed by Congress, contravening the balance struck by a democratically enacted law. Under our constitutional democracy the president has the power to sign or veto laws—not to disregard them or interpret them away. The administration’s radical approach to presidential power is sadly reminiscent of disgraced President Nixon who said: “When the President does it, that means that it is not illegal.” The president has claimed that he is doing everything within his authority to protect against terrorism but seems to have no awareness that there are any limits on that authority. He took an oath to “faithfully execute” the laws of the United States, not just the ones he chooses to follow.

The administration has also claimed the right to do so based on a distorted view of history. For example, some have claimed that "President Clinton exercised the same authority" as President Bush, based on the testimony of Deputy Attorney General Jamie Gorelick back in 1994, but what she actually said was that FISA at that time restricted only electronic surveillance and not physical searches in intelligence investigations, which was correct. In the wake of the Aldrich Ames spying investigation, Gorelick testified that "the administration and the attorney general support, in principle, legislation establishing judicial warrant procedures under the Foreign Intelligence Surveillance Act for physical searches undertaken for intelligence purposes... the Department of Justice believes that Congress can legislate in the area of physical searches as it has done with respect to electronic surveillances, and we are prepared to support appropriate legislation." In October 1994, Congress amended FISA to require court oversight of requests to conduct physical searches in intelligence cases. Accordingly, claims that the last president did the same thing are just political red herrings.

So too are the arguments made by the administration about prior presidents. The Church Committee thoroughly examined the rationales used by some former administrations to try to justify warrantless spying in the name of national security, noting that any system of secret police “may become a menace to free government and free institutions because it carries with it the possibility of abuses of power which are not always quickly apprehended or understood’ . . . Our investigation has confirmed that warning. We have seen segments of our government, in their attitudes and action, adopt tactics unworthy of a democracy... We have seen a consistent pattern in which programs initiated with limited goals, such as preventing criminal violence or identifying foreign spies, were expanded to what witnesses characterized as ‘vacuum cleaners,’ sweeping in information about lawful activities of American citizens.” That is why, after its exhaustive examination of law and history, the Committee found: “There is no inherent constitutional authority for the President or any intelligence agency to violate the law.” It also stated ”It is the intent of the Committee that statutes implementing these recommendations provide the exclusive legal authority for federal domestic security activities,” the gathering of foreign intelligence on these shores.[18]


MYTH: These warrantless wiretaps could never happen to you.

REALITY: Without court oversight, there is no way to ensure innocent people’s everyday communications are not monitored or catalogued by the NSA or other agencies. During the Cold War, the list of people considered by McCarthy to be “communists” was long and it was wrong in many notable instances. In the 1960s, J. Edgar Hoover secretly wiretapped the communications of the leader of the civil rights movement, the Reverend Martin Luther King Jr., under the guise of national security. Before FISA was passed, President Nixon personally approved wiretaps of cabinet members, government employees, journalists and other Americans he didn’t like or didn’t trust. These and other revelations led to the passage of FISA to protect Americans’ Fourth Amendment right to privacy in their conversations from this ever happening again, by requiring judicial oversight of all US wiretaps including those in the name of national security.

Without a court review, there is no way to protect innocent Americans from having their every conversation recorded. And, unfortunately, the Bush Administration has a track record of pursuing ineffective anti-terrorist dragnets that intrude on innocent Americans’ rights. Examples include certain airline passenger identity screening programs and the now-outlawed Total Information Awareness data-mining program. Other examples include recent disclosures that FBI or Defense Department agents are spying on Quakers and other pacifists, environmentalists, and vegetarians, all in the name of national security. Without a judicial check, the powerful electronic surveillance tools of the NSA can be trained on anyone.

The administration has repeatedly stated that the president is “mindful” of Americans’ civil liberties, but our system of government requires checks on power, not deference to those in power. The illegal NSA program of spying on Americans gives unlimited power to the President, whoever he or she may be, without constitutionally required checks on that power.[4]


MYTH: This illegal program could have prevented the 9/11 attacks.

REALITY: This is utter manipulation. Before 9/11, the federal government had gathered intelligence, without illegal NSA spying, about the looming attacks and at least two of the terrorists who perpetrated them, but failed to act. As we know from the 9/11 Commission report, the main problem was not gathering information, but translating it, interpreting it, sharing it and acting on it in a timely fashion.

Intelligence agencies were already overwhelmed by information – they had many thousands of hours of un-translated intercepts on bona fide terror suspects. There were at least a dozen intelligence reports or Presidential Daily Briefings that Osama bin Laden planned to use aircrafts as weapons to crash into buildings. The CIA missed opportunities to put the hijackers on a watch list, and even when the terrorism threat peaked level in the summer of 2001, the FBI, CIA and State Department failed to give vital information to the airlines or customers. The CIA, FBI, and INS failed to communicate threat information fully with each other or fully investigate suspected terrorists. Given the evidence of turf wars and bureaucratic dysfunction, the last thing the intelligence agencies needed before 9/11 was a volume of information about ordinary law abiding Americans to analyze on top of information gathered from suspected terrorists.

And the same is true today. The New York Times has reported that the FBI has been swamped by information provided by the NSA under Bush's directive, and that the information led to countless dead ends. One source stated: "It affected the FBI in the sense that they had to devote so many resources to tracking every single one of these leads, and, in my experience, they were all dry leads."[19] FBI agents have said that information from this program was useless and led to an enormous waste of resources and of the time of trained FBI investigators. Rank-and-file agents reportedly started to joke that the intelligence gleaned from the NSA spying was so unreliable that a new batch of tips meant more "calls to Pizza Hut."[20]