The program of electronic surveillance of Americans by the National Security Agency that President Bush instituted in secret right after the 9/11 attacks has been controversial enough.
Given that it appears to have circumvented the 1978 Foreign Intelligence Surveillance Act, which set up a special court to approve warrants for surveillance of Americans, it may well have been illegal.
Now it appears likely the Bush administration was trying to implement that program seven months before 9/11 — long before most Americans had heard of al-Qaida or Osama bin Laden, and long before the administration had even thought about paying attention to them.
It appears to have been simply an early assertion that a new administration was in town and it planned to expand the powers of the presidency immediately.
Court documents recently unsealed in the case of Joseph Nacchio, former head of the telephone company Qwest Communications — he was convicted of insider trading and is appealing — allege that in February 2001 the company was pressured into providing customer call records to the NSA.
The company’s lawyer advised the request was improper and probably illegal, and Nacchio refused. The company also refused to provide customer records after 9/11.
The court records are so heavily redacted it is almost impossible to know exactly what the government was asking Qwest to do.
Nacchio, in his insider trading case, claimed the request was relevant as evidence that he knew of secret government programs Qwest was in line to participate in that would have made the company more profitable than it appeared publicly.
He alleged that in retaliation for the company’s refusal to provide customer records the government denied it contracts.
The prosecution in his case denied the claims, and he was convicted.
However Nacchio’s appeal comes out, his case — if the allegations are true — suggests that the Bush administration was seeking additional presidential power to conduct surveillance on Americans without a warrant long before the terrorist attacks of 9/11.
This may not be surprising. Vice President Cheney has long believed that Watergate and other scandals unjustifiably reduced the effective power of the presidency as an institution and has not been shy about letting people know that one of his missions in life has been to “restore” inherent power he believes the presidency should have.
This struggle over how much power a president has in war and peace has been going on ever since the founding of the republic. It has taken on particular urgency with the emergence of the United States as a world power that sometimes asserts the right to intervene in the affairs of other countries whether those countries pose a direct threat or not.