Watchdog: Bush turning intelligence agencies on Americans
Nick Juliano
Published: Thursday July 31, 2008

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President Bush seems to be slowly turning the nation's massive surveillance apparatus upon its citizens, and some worry that administration assurances to protect civil liberties are nothing but empty promises.

With his update to a decades-old executive order governing the Intelligence Community, Bush is giving the Director of National Intelligence and the 16 agencies of the US Intelligence Community more power to access and share sensitive information on Americans with little to no independent oversight. The update to Executive Order 12333, first issued by former President Ronald Reagan, introduces a more prominent role for the Attorney General in approving intelligence gathering methods, calls for collaboration with local law enforcement agencies, eases limits on how information can be shared and urges cooperation between the IC and private companies.

"This Intelligence Community that was built to deal with foreign threats is now being slowly and incrementally turned inward," says Mike German, policy counsel for the American Civil Liberties Union, in an interview with RAW STORY.

Bush's latest update of a decades old executive order governing intelligence activities is a "lit fuse" that could end with the Constitution's immolation, another ACLU official says.

"This kind of concentrated power, exercised in secret, is a lit fuse with our Constitution likely in danger of being burned, said Caroline Fredrickson, director of the ACLU Washington legislative office.

The White House insists that the update to Executive Order 12333 maintains protections for Americans' civil liberties, but senior administration officials who briefed reporters Thursday provided little reassurance that the new order would correct some of the Bush administration's most egregious abuses.

Asked about Bush's decision to authorize warrantless wiretaps of Americans -- despite existing privacy protections in the executive order -- the unidentified official offered a non-sequitur and refused to discuss the program in detail, according to a transcript of the call.

Q: All right. On the matter of civil liberties, I think one of the concerns that you're going to hear is, you know, the terrorist surveillance program or the warrantless wiretapping program went on despite the civil liberties protections. So what do you have to say to folks that say, you know, essentially nice that you have this stuff in the executive order but it doesn't necessarily mean anything when the president gets it into his mind that he needs or wants to do something that some people would find outside of those bounds?

SR. ADM. OFFICIAL: I think what we would say to that is that the executive order reaffirms the nation's long-standing commitment to protecting civil liberties. It maintains all of the protections that are in place to do so, plus all procedures have to be approved by the attorney general.

With respect to the terrorist surveillance program, I'm really not going to speak in any detail to that. The administration has spoken to it previously. I'd observe that -- I'm going to leave it at that on that question.

An administration official also assured reporters that the amended order "makes clear, as did the original order, that all statutes have to be complied with when the intelligence community is undertaking activities governed by specific statutes."

Of course, that's precisely what did not happen with regard to the warrantless wiretapping program, which was conducted outside the bounds of the Foreign Intelligence Surveillance Act.

ACLU policy counsel German further noted the previous disclosure of a Justice Department Office of Legal Counsel opinion that presidents are not even bound by executive orders in the first place: "Rather than violate an executive order, the President has instead modified or waived it," Sen. Sheldon Whitehouse revealed the office had argued.

"If that's still the position of the Department of Justice, then this entire exercise is meaningless," German told RAW STORY. "This all could be voided by presidential fiat without even amending what's written now."

Bush authorized the extra-statutory warrantless surveillance in part based on an exceptionally broad reading of the extent of his executive power and by arguing that Congress's pre-Iraq War resolution expanded his power even further. The updated order apparently does nothing to eliminate those views of expansive power.

Q: Hi. I have a question about the provision saying all the undertaking would have to be governed by statute where there is a statute. Is that a step back from previous assertions that, you know, the authorization of use of military force gave a more broad authority to the president?

SR. ADM. OFFICIAL: No, I don't think so. The point that -- I don't believe so at all -- I think the point that we're trying to make there is when there is a specific statute that governs a particular activity, for example, you know, the collection of certain business records or financial records, or the conduct of electronic surveillance, the Congress, as many of you know, has put in place various statutes, some of them quite elaborate, to govern the conduct of those activities. And the intelligence community, when engaged in such activity, has to fully comply with those statutes. I don't believe there's any change at all on that front.

Executive Order 12333, which lays out the responsibilities of each of the 16 agencies, maintains the decades-old prohibitions on assassination and using unwitting human subjects for scientific experiments. The CIA notoriously tested LSD on human subjects in the 1950s, which was revealed by a Senate investigation in 1977.

The new order gives the national intelligence director, a position created in 2005, new authority over any intelligence information collected that pertains to more than one agency -- an attempt to force greater information exchange among agencies traditionally reluctant to share their most prized intelligence. The order directs the attorney general to develop guidelines to allow agencies access to information held by other agencies. That could potentially include the sharing of sensitive information about Americans.

The order has been under revision for more than a year, an attempt to update a nearly 30-year-old presidential order to reflect organizational changes made in the intelligence agencies after the Sept. 11, 2001, terrorist attacks.

German noted the update's insertion of provisions related to Intelligence Community cooperation with "state, local and tribal governments," which he says has troubling implications in light of the ACLU's recent examination of government fusion centers, creating the potential for "no rules" intelligence sharing among various agencies.

The update, he says, also removes limits on the National Security Agency's ability to share with other intelligence entities the information it collects before determining whether it is legally allowed to keep such information itself.

The update also carves out a larger role in intelligence gathering for the "private sector," an addition that takes on new interest in light of Bush's unflinching demand for legal immunity to the telecommunications companies that facilitated his warrantless wiretapping program. Congress granted that immunity in its FISA update, which he signed into law earlier this month, essentially invalidating dozens of lawsuits against companies like AT&T and Verizon. The senior administration official said the FISA update was one of the reasons Bush was updating the executive order.

"If the Intelligence Community is acting to further the interest of AT&T," German said, "then maybe we better understand why AT&T cooperated in the warrantless wiretapping program."

With wire reports