Special Report pundits created false justification for Bush administration's domestic spying operation

On the December 16 edition of Fox News' Special Report with Brit Hume, nationally syndicated columnist Charles Krauthammer falsely suggested that President Bush's authorization of domestic spying -- without obtaining a search warrant -- was an "expedient action," rather than a "scandal," because the administration did "tell the court" after the fact that it was going to do so. In fact, the administration never alerted the relevant court to its surveillance of domestic phone calls.

Krauthammer also misstated the law by claiming that it would be a "mistake" to follow a law that would force the White House to "wait to go to a judge" to obtain a warrant rather than "act immediately" to thwart a potential terrorist attack -- a point with which guest host Jim Angle, Roll Call executive editor Morton M. Kondracke, and Weekly Standard executive editor Fred Barnes readily agreed. In fact, in emergency situations, the law does not require the White House to "wait to go to a judge." The emergency provisions on electronic surveillance in the United States Code permit the attorney general to make an independent judgment to immediately begin surveillance of domestic phone calls up to 72 hours prior to formally applying to the Foreign Intelligence Surveillance Act (FISA) court for a warrant.

Krauthammer's argument rests on the claim that the Bush administration would have "a good defense" for skirting the law if it needed to act immediately and did subsequently "tell the court" that it had undertaken a particular act of domestic surveillance. But Krauthammer's claim misstates the law and the Bush administration's actions. Under the law, the attorney general is granted a 72-hour window to make an independent judgment to begin domestic surveillance before going to court. But within 72 hours, he or she must then obtain a warrant from the FISA court to continue the monitoring. According to a December 19 New York Times report, in cases in which the administration undertook domestic surveillance without first obtaining a warrant, the administration "did not seek" a warrant from the FISA court within 72 hours, as the statute requires, or ever. This suggests that it was not the need to "act immediately" that prevented the administration from complying with the FISA statute, but, rather, the fear of being denied the warrant after the fact.

Also, earlier on Special Report, Ronald Kessler, author of A Matter of Character: Inside the White House of George W. Bush (Sentinel, August 2004), misstated the law by baselessly claiming that even under the emergency provisions of the law, it would take "at least a day, maybe two days to get all the signatures required to get an authorization from the attorney general" to begin surveillance. In fact, there is no reason for a delay in beginning surveillance under the emergency provisions -- the attorney general is able to make an independent and immediate decision to engage in surveillance for the limited 72-hour period before the administration must apply for a warrant.

From U.S. Code Title 50, Chapter 36, SUBCHAPTER I, § 1805:

(f) Emergency orders

Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that--

(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and

(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;

he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest.

From the December 16 edition of Special Report with Brit Hume:

KESSLER: The main point here is, we are living in a different world. We're talking about terrorists who don't care if they're killed, who are trying very hard to get a nuclear device, to get biological -- which could kill millions of people -- and if you get one little snippet of information before that happens, that may be enough to stop the plot. And let's say the Israelis tell us that they have [Al Qaeda leader Osama] bin Laden's phone -- and by the way, we did have bin Laden's satellite phone until The Washington Post blew that in 1998, and so he stopped using that phone.

But let's say we have bin Laden's phone, the NSA [National Security Agency] gets that information. They have to be on that call immediately; you simply cannot wait for any authorization. It would take, even on an emergency basis, at least a day, maybe two days to get all the signatures required to get an authorization from the attorney general, this is under the emergency provision of the FISA Act. So, you simply have to do it. And the question is, you know, was this done properly? Well, they did disclose it to the intelligence communities; they did disclose it to the FISA court judge. There is a review process in place and all these members of Congress are running around saying, "Well, this is terrible." A lot of them knew about it and never objected.

[...]

KRAUTHAMMER: The law on this is pretty unclear, and people who are scandalized by all of this, I think, are jumping the gun. You've got to ask yourselves, "Why would the administration have not gone to get a court order in these cases?" It obviously could have. It does in others. It did not hide all this. It told leading senators of both the parties in the intelligence committees, and it told the judges after the fact.

So the assumption has to be -- unless people argue or show us otherwise -- that the main reason would have been imminence. In other words, you're on a call, you've got to act immediately and you can't wait to go to a judge. If that is what happened, I think that there is a very strong defense if you then tell the court and the Congress about this after the fact.

Now, the administration has not stated its case. So, we don't know why all of this happened. But if that is the case, it is not a scandal, it's an expedient action. You could say, "Well, you know, the world be damned," and Americans die in the name of the law, which itself is pretty murky if you don't go to a court in an imminent attack. I think that would be a mistake.

[...]

KONDRACKE: Now, in this case, I'm tempted to side with Charles on this. When there's a necessary -- necessity for expediency -- then you go, you do what you have to do in order to get the goods that you need.

On the other hand, if they were bypassing the FISA court for months at a time without just, you know, and never going to the FISA court -- and it's very difficult to tell at this point -- then it seems to me, that that's out of bounds.

[...]

ANGLE: So if the administration was trying to hide something, there was no reason not to go to the FISA court, unless there was something very odd about this. It seems that the problem was something else, either what Charles is talking about or something we don't know about.

BARNES: I don't know what it is other than what Charles said, it would be the need of time to move speedily and they can do it.