Published on Tuesday, November 11, 2008 by Wired

Bush Spy Revelations Anticipated When Obama Is Sworn In

by Ryan Singel

When Barack Obama takes the oath of office on January 20, Americans won't just get a new president; they might finally learn the full extent of George W. Bush's warrantless domestic wiretapping.

The Bush administration has stonewalled, misled and denied documents to Congress, and subpoenaed the phone records of investigative reporters.(Credit: Monsivais/AP)

Since The New York Times first revealed in 2005 that the NSA was eavesdropping on citizens' overseas phone calls and e-mail, few additional details about the massive "Terrorist Surveillance Program" have emerged. That's because the Bush administration has stonewalled, misled and denied documents to Congress, and subpoenaed the phone records of the investigative reporters.

Now privacy advocates are hopeful that President Obama will be more forthcoming with information. But for the quickest and most honest account of Bush's illegal policies, they say don't look to the incoming president. Watch instead for the hidden army of would-be whistle-blowers who've been waiting for Inauguration Day to open the spigot on the truth.

"I'd bet there are a lot of career employees in the intelligence agencies who'll be glad to see Obama take the oath so they can finally speak out against all this illegal spying and get back to their real mission," says Caroline Fredrickson, the ACLU's Washington D.C. legislative director.

New Yorker investigative reporter Seymour Hersh already has a slew of sources waiting to spill the Bush administration's darkest secrets, he said in an interview last month. "You cannot believe how many people have told me to call them on January 20. [They say,] 'You wanna know about abuses and violations? Call me then.'"

So far, virtually everything we know about the NSA's warrantless surveillance has come from whistle-blowers. Telecom executives told USA Today that they had turned over billions of phone records to the government. Former AT&T employee Mark Klein provided wiring diagrams detailing an internet-spying room in a San Francisco switching facility. And one Justice Department attorney had his house raided and his children's computers seized as part of the FBI's probe into who leaked the warrantless spying to The New York Times. Attorney General Alberto Gonzales even suggested the reporters could be prosecuted under antiquated treason statutes.

If new whistle-blowers do emerge, Fredrickson hopes the additional information will spur Congress to form a new Church Committee -- the 1970s bipartisan committee that investigated and condemned the government's secret spying on peace activists, Martin Luther King, Jr., and other political figures.

But even if the anticipated flood of leaks doesn't materialize, advocates hope that Obama and the Democratic Congress will get around to airing out the White House closet anyway. "Obama has pledged a lot more openness," says Kurt Opsahl of the Electronic Frontier Foundation, which was the first to file a federal lawsuit over the illegal eavesdropping.

One encouraging sign for civil liberties groups is that John Podesta, president of the Center for American Progress, is a key figure in Obama's transition team, which will staff and set priorities for the new administration. The center was a tough and influential critic of the Bush administration's warrantless spying.

Among the unanswered questions:

• Were there quid pro quo promises made to the phone companies and internet carriers who cooperated with the secret spying? For example, were co-conspirators promised lucrative government contracts?

• Did the program appropriate the CALEA wiretapping infrastructure? Under CALEA, Congress forced telecoms to build surveillance capabilities into the phone and internet network, but promised it would only be used with court orders.

• What did the first version of the surveillance program sweep into its net? In March 2004, a squadron of top officials at the Justice Department, including then-Attorney General John Ashcroft and FBI head Robert Mueller, threatened to resign over the illegality of the program. The program was subsequently scaled back, but nobody knows what the NSA was doing that was bad enough to horrify Ashcroft.

• What was the legal rationale for the surveillance?FISA explicitly made warrantless domestic eavesdropping illegal, but the Justice Department's Office of Legal Counsel issued a series of memos justifying the spying anyway. The ACLU is fighting the Bush administration for access to the documents, as well as secret memos justifying torture.

"It's difficult to see how Sen. Obama could call his administration transparent if his administration continues to suppress non-sensitive information that should have been released a long time ago," says the ACLU's Jameel Jaffer.

The other looming question is whether, as president, Obama will continue the warrantless spying himself. Obama voted with the majority in Congress to legalize the Bush spying program in July, but the constitutionality of the measure is yet untested. An Obama administration is less likely than Bush to devise convoluted legal end-runs around the Constitution, according to Marc Rotenberg, the head of the Electronic Privacy Information Center.

"Keep in mind that Obama is a constitutional scholar and has a deep understanding of checks and balance," says Rotenberg. "It's hard to imagine that an Obama administration would support ... warrantless wiretapping."

With the financial markets and the economy in deep trouble, it's unlikely that Obama will quickly turn to the issue of warrantless wiretapping. But the EFF's lawsuit against AT&T over the surveillance could force the new administration to pick a side quickly. In December, a federal judge in San Francisco will hold a hearing on whether the retroactive immunity granted to AT&T and other telecoms as part of the FISA Amendments Act is Constitutional. Obama voted for the act in order to legalize the spying program, but tried unsuccessfully to strip out the immunity provision.

EFF's Opsahl hopes that if EFF prevails in December, an Obama administration might let the decision stand, clearing the way for EFF's lawsuit to proceed.

"If we are victorious in our constitutional challenge, I would hope the Obama administration would accept that loss and move on without an appeal," says Opsahl. "But we will have to see."

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