Barone mischaracterized NSA spying program to dismiss critics

Summary: A column by U.S. News & World Report senior writer Michael Barone mischaracterized the Bush administration's warrantless domestic surveillance program, dismissing the "hue and cry" from "the mainstream media and some Democrats" over its alleged illegality. However, numerous Republicans and conservatives have also criticized and expressed concern over the program.

In his January 30 nationally syndicated column, U.S. News & World Report senior writer Michael Barone mischaracterized the Bush administration's warrantless domestic surveillance program, dismissing the "hue and cry" from "the mainstream media and some Democrats" over its alleged illegality.

In his column, Barone wrote:

But for some people, it seems to be the '70s all the time. After The New York Times revealed on Dec. 16 that the National Security Agency was monitoring telephone calls from suspected terrorists abroad to people in the United States, a hue and cry went up from the mainstream media and some Democrats that the Bush administration was engaged in a massive and illegitimate program of domestic wiretapping. Never mind that few if any wires were tapped -- it's likely that most of these calls were on cell phones -- and that every one of the calls was by definition international.

Yes, there are some serious people who argue that the program violated the Foreign Intelligence Surveillance Act of 1978 (that slum of a decade again) because warrants were not obtained. But no serious person doubts that the president can order surveillance of enemy communications in time of war. And it doesn't make much sense to listen in on enemy communications but to hang up when a call is made to someone in the United States.

Barone's claim that "it doesn't make much sense to listen in on enemy communications but to hang up when a call is made to someone in the United States" is misleading. The administration's critics argue that surveillance should be conducted in accordance with the law. As Barone himself noted in the preceding sentence: "[N]o serious person doubts that the president can order surveillance of enemy communications in time of war." But, at least one high-ranking member Bush's Department of Justice has expressed doubts that the president could do what he is reportedly doing. As Media Matters for America has noted, former Deputy Attorney General James B. Comey -- who was then acting attorney general -- refused to reauthorize the NSA program in 2002 while then-Attorney General John Ashcroft was hospitalized. As Newsweek reported in its February 6 edition, Comey was one of several Bush administration officials who objected to vast expansions of executive power to conduct the "war on terror," such as the NSA program. The nonpartisan Congressional Research Service (CRS) also said that the program as reportedly conducted raises serious legal and constitutional questions. Specifically, a January 5 CRS report noted that, according to a January 7 Washington Post article's description of the report, the Bush administration's legal justification for the NSA program "conflicts with existing law and hinges on weak legal arguments." *

In writing that the NSA monitors "calls from suspected terrorists abroad to people in the United States," and that "every one of the calls was by definition international," Barone mischaracterized The New York Times' reporting on the program and ignored evidence that the surveillance program monitors communications from the United States and even calls in which both parties are in the United States. The Times reported on December 16, 2005, that "officials familiar with it say the N.S.A. eavesdrops without warrants on up to 500 people in the United States at any given time." President Bush and White House press secretary Scott McClellan have acknowledged that the NSA requires only that it "reasonably suspect" someone of links to terrorism in order to intercept that person's communications. The Times also reported on December 21 that purely domestic calls had been captured by the program.

Barone's claim that "it doesn't make much sense to listen in on enemy communications but to hang up when a call is made to someone in the United States" is misleading. The administration's critics argue that surveillance should be conducted in accordance with the law. As Barone himself noted in the preceding sentence: "[N]o serious person doubts that the president can order surveillance of enemy communications in time of war." But, at least one high-ranking member Bush's Department of Justice has expressed doubts that the president could do what he is reportedly doing. As Media Matters for America has noted, former Deputy Attorney General James B. Comey -- who was then acting attorney general -- refused to reauthorize the NSA program in 2002 while then-Attorney General John Ashcroft was hospitalized. As Newsweek reported in its February 6 edition, Comey was one of several Bush administration officials who objected to vast expansions of executive power to conduct the "war on terror," such as the NSA program. The nonpartisan Congressional Research Service (CRS) also said that the program as reportedly conducted raises serious legal and constitutional questions. Specifically, a January 5 CRS report noted that the Bush administration's legal justification for the NSA program "conflicts with existing law and hinges on weak legal arguments."

Critics also argue that the administration should have petitioned Congress to change the 1978 Foreign Intelligence Surveillance Act (FISA) before initiating the program. Instead, as Media Matters noted, the Bush administration has actively rejected congressional consultation and offered contradictory rationales for opposing a 2002 bill by Sen. Mike DeWine (R-OH) that would have lowered the threshold for conducting electronic surveillance under FISA. Specifically, the Justice Department rejected the DeWine bill in 2002, claiming that lowering FISA standards might not "pass constitutional muster," despite the fact that the program was -- and is -- being conducted wholly independent of FISA standards.

* This item originally attributed the phrase "conflicts with existing law and hinges on weak legal arguments" to the January 5 Congressional Research Service report. In fact, this text appears in The Washington Post's January 7 analysis of the report but not in the report itself. The relevant quote from the CRS report is as follows: "Given such uncertainty, the Administration's legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests." We regret the error.

—S.S.M.