The New York Times has reported that the Justice Department has released a newly declassified version of a May 2004 legal memo regarding warrantless surveillance and data collection activities that President George W. Bush secretly authorized after the terrorist attacks of Sept. 11, 2001.
According to the Times,
The Justice Department’s conclusion that the email metadata program was illegal led to a March 2004 confrontation between White House and department officials in the hospital room of Attorney General John Ashcroft, after which nearly the entire top leadership of the department threatened to resign, prompting President Bush to agree to changes.
On May 6, 2004, Mr. Goldsmith, who had taken over as the head of the Office of Legal Counsel the previous year and had reached the conclusion that the Internet data program was illegal, completed a 108-page memo that fully reassessed all aspects of the program.
Mr. Goldsmith concluded that the president’s wartime powers both as commander in chief and under Congress’s authorization to use military force against Al Qaeda were sufficient to overcome requirements in theForeign Intelligence Surveillance Act, or FISA, for court approval for most of the program.
“The president has inherent constitutional authority as commander in chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States,” he wrote. “Congress does not have the power to restrict that authority.”
The theory proposed in the Memo still seem tenuous. The suggestion that a wartime footing — even if applicable — would permit widespread surveillance in violation of the Fourth Amendment finds no basis in the text or history of the Amendment. Moreover, the scope of the program would allow for broad searches unrelated to any individualized suspicion of wrong doing.