After the revelations in the press of the spying program, the lawsuits against the companies for breaching privacy laws came flooding in. This was especially true after USA Today named the companies involved. Also, the General Counsel for the NSA suggested to Alberto Gonzalez (now the Attorney General) in 2006 that FISA be amended to deal with the new reality of metadata collection and dissemination. By this time, companies were continuing to hand over information to the NSA voluntarily or the FISC was rubber-stamping FISA applications erring on the side of prevention. Given this new reality, Bush determined in early 2007 that he did not have to keep signing off on new reauthorizations.
The legal landscape changed which led to the current state of affairs when Congress passed the Protect America Act (PAA) in 2007. Originally threatened with a Presidential veto, changes were made resulting in granting retroactive immunity to the telecommunication companies for complying with or assisting the government in the collection of metadata the following year in the FISA Amendments Act. This effectively stopped all the pending lawsuits by June 2009, although we did learn the true scope of the spying operation authorized by Bush in those days immediately after 9/11.
To fully understand what happened here, one must understand the fear and apprehension evident in the country and the Bush administration after 9/11. After the initial shock wore off and people started to resume some sense of normalcy, the inevitable happened- the blame game. Being the President of the United States, all eyes were naturally on Bush. The Congressional Authorization of the Use of Force was initially interpreted by lawyers in the DOJ and White House to include the use of warrantless “wiretaps” to thwart a future terrorist attack. This was later confirmed that the original interpretation was viable as was stated by two people- Philbin and Goldsmith- who were probably two of the most skeptical adherents of the legality of the program.
Perhaps Congress was under the impression that when they granted the Authorization, it meant a traditional military response against al-Qaeda. After all, they had just emerged from eight years of Clinton lobbing the occasional cruise missile at suspected al-Qaeda targets. The Bush administration, however, was adjusting to the new reality that this “war” was one that would likely not be waged on the traditional battlefield with military hardware. This also was not necessarily a law enforcement operation, which was the mindset in the Clinton administration. Instead, Bush summoned forth the full power of law enforcement (the FBI and DOJ), the military (Afghanistan), and the intelligence community (CIA and NSA) to wage the war both domestically and abroad. Bush was under a mandate to protect America by “whatever means necessary” from a future terrorist attack.
The events of 9/11 and the Bush response afterwards, vis-a-vis the operations of the NSA, had, however, another effect. Some adopted the belief that the bulk collection of metadata on American citizens was no big thing because it helped prevent a terrorist attack. If you had nothing to hide, you had nothing to fear. With respect to that mindset, it is not always true. It was later revealed that analysis of some of the NSA-provided data led the FBI down dead ends, wasted time and resources, and targeted innocent people. Considering the amount of data collected and the few successful hits that we know about, there is some rationale to these findings.
People also came to accept the reality of a new era of surveillance. Cameras on lamp posts in major metropolitan cities and buildings became the new normal. After the creation of the Homeland Security Department and the TSA, the behavior of airline passengers had to adjust to this new reality. Changes in the intelligence community to allow the sharing of timely intelligence between agencies was enacted.
One must not overlook the American’s tacit approval of the new normal of a surveillance state. The revelations of the Bush-NSA collection of metadata from telecommunication companies raised some concerns once they were initially revealed. We were reassured by the government that the necessary changes and adjustments were made to protect Constitutional rights. Whether the revelations of the PSP, PRISM, or the leaks at the hands of Edward Snowden, there was the initial outcry, the inevitable Congressional hearings, the usual concerned faces on television, etc., but life went on soon thereafter.
It is way too easy to criticize President Bush for his actions in this area after the worst attack on US soil since Pearl Harbor that left over 3,000 innocent Americans and many foreign nationals dead in the rubble of the World Trade Center and the Pentagon, not to mention the heroic passengers on that plane that crashed in a field in Pennsylvania killing all onboard, but likely saving even more innocent lives. He was under tremendous pressure to “do something” to make sure it never happened again.
But as the saying goes, the road to hell is paved with good intentions. Bush could not have known that the road to the Russia-Trump collusion hoax was also paved with his good intentions. The very surveillance systems brought into being by Bush then later codified by the FISA court and Congressional actions were laying the groundwork and the infrastructure for the eventual scandal. The tools created for one thing ended up in the wrong hands and used for something entirely different.
Of course, Bush will forever be remembered for the Iraq War. He left office with some of the lowest approval ratings in recent presidential history. However, there is one area where he continued to fight on long after his ratings started to plummet.
President Bush steadfastly fought for the FISA program and spying operation set into motion on October 4, 2001 until the day he left office. Whether it was the Protect America Act or the FISA Amendment Act, Bush continued to fight for these laws because he considered them useful tools in combating terrorism and protecting Americans. There may have been dead-ends, false leads, and a “waste” of FBI resources and time, but one thing cannot be refuted: there has not been another 9/11.
Next: The interesting case of HAMMER