Bush, and AG Alberto Gonzales, have argued that the NSA surveillance was tacitly sanctioned by Congress when it passed the Authorization Of Military Force act in the days following 9/11, an act which permitted Bush to use "all necessary force" to go after terrorists.
Um, not so much. When the AOMF was being debated in Congress, here’s what some Congresspersons – Democratic and Republican – were saying:
Sen. Ted Stevens (R-AK):
Some people say that is a broad change in authorization to the Commander in Chief of this country. It is not. It is a very limited concept of giving him the authority to pursue those who have brought this terrible destruction to our country and to pursue those who have harbored them or assisted them and conspired with them in any way. [Congressional Record, 9/14/01]
Rep. James McGovern (D-MA):
The body of this resolution is appropriately limited to those entities involved in the attacks that occurred on September 11th…It reiterates the existing constitutional powers of the President to take action to defend the United States, but provides no new or additional grant of powers to the President. [Congressional Record, 9/14/01]
Sen. Joe Biden (D-DE):
In extending this broad authority to cover those ‘planning, authorizing, committing, or aiding the attacks’ it should go without saying, however, that the resolution is directed only at using force abroad to combat acts of international terrorism. [Congressional Record, 9/14/01]
Rep. Christopher Smith (R-NJ):
The resolution is not a blank check. We do this with our eyes open and in fervent prayer, especially the prayer that President Bush and his national security team will be lavished with wisdom from God above to use only that force which is truly necessary and only that force which is truly appropriate. [Congressional Record, 9/14/01]
Rep. Lloyd Doggett (D-TX):
The tension that we face tonight is to provide the President with enough authority to eradicate wrongdoing without wronging the carefully crafted systems of checks and balances so essential to our democracy. … As we vote for this important resolution with the lives of so many at stake in this important endeavor against terrorism, we cannot let the executive branch become the exclusive branch. [Congressional Record, 9/14/01]
Bush has also claimed that Congress was briefed on the NSA program, and therefore it tacitly endorsed that program. As many have pointed out, only a handful of Senators were briefed, which doesn’t count as "congressional approval" under even the wildest imagination.
Moreover, Sen. Jay Rockefeller was one of those who became aware of the program (after it had started) back on June 17, 2003. After learning about it, but being unable to talk about it — even to his staff — he handwrote a sealed letter to the White House. He also kept a copy, just in case the Administration tried to argue that Congress approved of the surveillance.
Today he released that letter with the following statement:
For the last few days, I have witnessed the President, the Vice President, the Secretary of State, and the Attorney General repeatedly misrepresent the facts. The limited members who were told of the program were prohibited by the Administration from sharing any information about it with our colleagues, including other members of the Intelligence Committees.
The record needs to be set clear that the Administration never afforded members briefed on the program an opportunity to either approve or disapprove the NSA program.
In the letter, Rockefeller warned of “profound oversight issues,” and said he was “unable to evaluate, much less endorse these activities.” It can be viewed (in PDF format) here.