Gaffney dubiously asserted that obtaining warrants under FISA would have "tipp[ed] off our enemies"

Summary: On CNN's The Situation Room, conservative columnist Frank J. Gaffney Jr. made the dubious claim that by attempting to obtain warrants for electronic surveillance of U.S. persons, as required by the Foreign Intelligence Surveillance Act (FISA), President Bush would have "tipp[ed] off our enemies" to the fact the U.S. government was spying on them.

On the January 16 edition of CNN's The Situation Room, conservative columnist Frank J. Gaffney Jr. made the claim that had President Bush attempted to obtain warrants for electronic surveillance of U.S. persons, as required by the 1978 Foreign Intelligence Surveillance Act (FISA), he would have "tipp[ed] off our enemies" to the fact the U.S. government was spying on them. In fact, because the proceedings of the FISA court are secret, it is unlikely that any attempt to secure warrants through the court would have, as Gaffney suggested, "tipp[ed] off our enemies."

When host Wolf Blitzer asked Gaffney if he understood why the president "changed the rules" by authorizing domestic surveillance without obtaining warrants from the special court established by FISA, Gaffney answered:

GAFFNEY: Yes, I understand why he was doing it. I think, I understand why he was doing it the way he was doing it. And the first and pre-eminent reason is he does not want to use his powers in a way that compromises those powers, specifically by tipping off our enemies to the fact that those powers are being used against them.

In fact, the Foreign Intelligence Surveillance Act of 1978 established rules of secrecy for the FISA court. The portion of the act establishing the court states:

The record of proceedings under this chapter, including applications made and orders granted, shall be maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of Central Intelligence. [USC Title 50, Chapter 36, §1803]

The Justice Department Web page describing the Foreign Intelligence Surveillance Act Records System -- the "information system for applications for orders for electronic surveillance or physical searches under the Foreign Intelligence Surveillance Act (FISA)" -- states: "Access to this system [FISARS] is restricted to OIPR [the Justice Department's Office of Intelligence Policy and Review] personnel with 'TOP SECRET/SCI' clearance and a need to know," adding that "[use of] FISARS is restricted to only those uses necessary to perform tasks required to implement the Foreign Intelligence Surveillance Act, as amended."

Additionally, noted conservative legal scholar Bruce Fein, who served as deputy attorney general for President Reagan, called the Bush administration's conduct of the domestic spying program in "secrecy," as well as the administration's "flagrant contempt for the Foreign Intelligence Surveillance Act ... shocking to me." On the January 16 edition of C-SPAN's Washington Journal, Fein stated:

FEIN: [T]he statement made that Al Qaeda didn't know that we were eavesdropping and if we disclosed that we in fact were undertaking this kind of counterintelligence collection is absurd on its face. The Foreign Intelligence Surveillance Act, which endows the president with comparable powers if he's thought to utilize them, already had signaled all of our enemies for some 27 years that we were engaged in this kind of activity. And the fact of the secrecy and the clear and flagrant contempt for the Foreign Intelligence Surveillance Act was quite shocking to me.

During the 1980s, Gaffney served as deputy secretary of defense to Reagan. He now heads the right-wing advocacy group Center for Security Policy, whose website says it is "committed to the time-tested philosophy of promoting international peace through American strength."

From the January 16 edition of CNN's The Situation Room, which also featured former Rep. Bob Barr (R-GA):

BLITZER: Do you understand why he decided to not go through what's called the FISA court, the Foreign Intelligence Surveillance Act court, Frank Gaffney, and do it the way previous presidents have done it?

GAFFNEY: Well, first of all, I think we have to be clear, Wolf, when the congressman [Barr] says he has great powers under the law, that's the president's view, too. He has great powers under the law, and he is exercising them.

BLITZER: But do you understand why he changed the rules?

GAFFNEY: Yeah, I understand why he was doing it. I think, I understand why he was doing it the way he was doing it. And the first and pre-eminent reason is he does not want to use his powers in a way that compromises those powers, specifically by tipping off our enemies to the fact that those powers are being used against them. This is part of the protection of this country that I think we invest in the judgment and in the responsibility of the president to exercise especially in time of war in a way that is going to protect the rest of us.

—J.B.