Top 12 media myths and falsehoods on the Bush administration's spying scandal
SUMMARY: Media Matters presents the top 12 myths and falsehoods promoted by the media on President Bush's spying scandal stemming from the recent revelation in The New York Times that he authorized the National Security Agency (NSA) to eavesdrop on domestic communications without the required approval of the Foreign Intelligence Surveillance court.
As The New York Times first revealed on December 16, President Bush issued a secret presidential order shortly after the September 11, 2001, terrorist attacks that authorized the National Security Agency (NSA) to eavesdrop on international phone and email communications that originate from or are received within the United States, and to do so without the court approval normally required under the Foreign Intelligence Surveillance Act (FISA). Facing increasing scrutiny, the Bush administration and its conservative allies in the media have defended the secret spying operation with false and misleading claims that have subsequently been reported without challenge across the media. So, just in time for the holidays, Media Matters for America presents the top myths and falsehoods promoted by the media on the Bush administration's spying scandal.
1: Timeliness necessitated bypassing the FISA court
Various media outlets have uncritically relayed President Bush's claim that the administration's warrantless domestic surveillance is justified because "we must be able to act fast ... so we can prevent new [terrorist] attacks." But these reports have ignored emergency provisions in the current law governing such surveillance -- FISA -- that allow the administration to apply to the Foreign Intelligence Surveillance Court for a search warrant up to 72 hours after the government begins monitoring suspects' phone conversations. The existence of this 72-hour window debunks the argument that the administration had to bypass the law to avoid delay in obtaining a warrant. The fact that the administration never retroactively sought a warrant from the FISA court for its surveillance activities suggests that it was not the need to act quickly that prevented the administration from complying with the FISA statute, but, rather, the fear of being denied the warrant.
2: Congress was adequately informed of -- and approved -- the administration's actions
Conservatives have sought to defend the secret spying operation by falsely suggesting that the Bush administration adequately informed Congress of its actions and that Congress raised no objections. For example, on the December 19 broadcast of Westwood One's The Radio Factor, host Bill O'Reilly claimed that the NSA's domestic surveillance "wasn't a secret program" because "the Bush administration did keep key congressional people informed they were doing this." The claim was also featured in a December 21 press release by the Republican National Committee (RNC).
In fact, both Republicans and Democrats in Congress have said that the administration likely did not inform them of the operation to the extent required by the National Security Act of 1947, as amended in 2001. Members of both parties have also said that the objections they did have were ignored by the administration and couldn't be aired because the program's existence was highly classified.
As The New York Times reported on December 21, Rep. Peter Hoekstra (R-MI), former Sen. Bob Graham (D-FL), Senate Intelligence Committee ranking member John D. Rockefeller IV (D-WV), and Senate Democratic Leader Harry Reid (D-NV) have stated that they did not receive written reports from the White House on the surveillance operation, as required by the National Security Act:
The demand for written reports was added to the National Security Act of 1947 by Congress in 2001, as part of an effort to compel the executive branch to provide more specificity and clarity in its briefings about continuing activities. President Bush signed the measure into law on Dec. 28, 2001, but only after raising an objection to the new provision, with the stipulation that he would interpret it "in a manner consistent with the president's constitutional authority" to withhold information for national-security or foreign-policy reasons.
[...]
[I]n interviews, Mr. Hoekstra, Mr. Graham and aides to Mr. Rockefeller and Mr. Reid all said they understood that while the briefings provided by [Vice President Dick] Cheney might have been accompanied by charts, they did not constitute written reports. The 2001 addition to the law requires that such reports always be in written form, and include a concise statement of facts and explanation of an activity's significance.
Further, Rockefeller recently released a copy of a letter he wrote to Cheney on July 17, 2003, raising objections to the secret surveillance operation. As the Times reported on December 20, Rockefeller said on December 19 that his concerns "were never addressed, and I was prohibited from sharing my views with my colleagues" because the briefings were classified. The December 21 Times report noted that House Democratic Leader Nancy Pelosi (D-CA) said she too sent a letter to the Bush administration objecting to the secret surveillance operation, and that Graham alleged that he was never informed "that the program would involve eavesdropping on American citizens."
3: Warrantless searches of Americans are legal under the 1978 Foreign Intelligence Surveillance Act
Conservatives such as nationally syndicated radio host Rush Limbaugh and American Cause president Bay Buchanan have defended the administration by falsely claiming that the administration's authorization of domestic surveillance by the NSA without warrants is legal under FISA. In fact, FISA, which was enacted in 1978, contains provisions that limit such surveillance to communications "exclusively between foreign powers," specifically stating that the president may authorize electronic surveillance without a court order only if there is "no substantial likelihood" that the communications of "a United States person" -- a U.S. citizen or anyone else legally in the United States -- will be intercepted. Such provisions do not allow for the Bush administration's authorization of domestic surveillance of communications between persons inside the United States and parties outside the country.
FISA also allows the president and the attorney general to conduct surveillance without a court order for the purpose of gathering "foreign intelligence information" for "a period" no more than 15 days "following a declaration of war by the Congress." This provision does not permit Bush's conduct either, as he acknowledged that he had reauthorized the program more than 30 times since 2001, and said that the program is "reviewed approximately every 45 days."
4: Clinton, Carter also authorized warrantless searches of U.S. citizens
Another tactic conservatives have used to defend the Bush administration has been to claim that it is not unusual for a president to authorize secret surveillance of U.S. citizens without a court order, asserting that Democratic presidents have also done so. For example, on the December 21 edition of Fox News's Special Report, host Brit Hume claimed that former presidents Jimmy Carter and Bill Clinton issued executive orders "to perform wiretaps and searches of American citizens without a warrant."
But as the ThinkProgress weblog noted on December 20, executive orders on the topic by Clinton and Carter were merely explaining the rules established by FISA, which do not allow for warrantless searches on "United States persons." Subsequent reports by NBC chief foreign affairs correspondent Andrea Mitchell and The Washington Post also debunked the conservative talking point while noting that the claim was highlighted in the December 21 RNC press release.
From ThinkProgress, which documented how internet gossip Matt Drudge selectively cited from the Clinton and Carter executive orders to falsely suggest they authorized secret surveillance of U.S. citizens without court-obtained warrants:
What Drudge says:
Clinton, February 9, 1995: "The Attorney General is authorized to approve physical searches, without a court order"
What Clinton actually signed:
Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign Intelligence Surveillance] Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.
That section requires the Attorney General to certify is the search will not involve "the premises, information, material, or property of a United States person." That means U.S. citizens or anyone inside of the United States.
The entire controversy about Bush's program is that, for the first time ever, allows warrantless surveillance of U.S. citizens and other people inside of the United States. Clinton's 1995 executive order did not authorize that.
Drudge pulls the same trick with Carter.
What Drudge says:
Jimmy Carter Signed Executive Order on May 23, 1979: "Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order."
What Carter's executive order actually says:
1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.
What the Attorney General has to certify under that section is that the surveillance will not contain "the contents of any communication to which a United States person is a party." So again, no U.S. persons are involved.
5: Only Democrats are concerned about the Bush administration's secret surveillance
As part of a larger problem of imprecise reporting, a number of media reports have falsely suggested that the debate over the Bush administration's secret surveillance of domestic communications is purely a partisan dispute between Democrats and Republicans. For example, on the December 22 broadcast of NBC's Today, Newsweek chief political correspondent Howard Fineman said: "[W]hile the Bill of Rights is something we all cherish, I think the Democrats politically need to be careful, because the president's going to argue, as he already is, that post-9-11, strong surveillance measures are required."
In fact, several prominent Republicans have expressed concern that the Bush administration's actions might violate the law or otherwise be objectionable. On December 18, Sen. Lindsey O. Graham (R-SC) said that "I don't know of any legal basis to go around" the requirement that the White House formally apply to the FISA court for a warrant to engage in domestic surveillance, while Sen. John McCain (R-AZ) said it is a "legitimate question" to ask why "the president chose not to use FISA." After Attorney General Alberto R. Gonzales cited executive authority in defending the legality of the administration's actions, Sen. Arlen Specter (R-PA) -- who is in charge of organizing an investigation into the issue -- responded that he was "skeptical of the attorney general's citation of authority."
6: Debate is between those supporting civil liberties and those seeking to prevent terrorism
Many media figures have created a false dichotomy by framing the debate over the Bush administration's actions as one between those who support protecting civil liberties and those who favor protecting America from another deadly terrorist attack. For example, NBC host Katie Couric claimed the debate amounted to "legal analysts and constitutional scholars versus Americans, who say civil liberties are important, but we don't want another September 11," while NBC's Mitchell wondered whether Americans should be more concerned about "[a] terror attack or someone going into their hard drive and intercepting their emails."
Such statements set up exactly the false debate put forth by Cheney and Bush to defend the administration's actions, as Mitchell subsequently noted on the December 21 edition of MSNBC's Hardball with Chris Matthews:
MITCHELL: [T]hey set up successfully, the White House, this premise of you're either for security and protecting the American people post-9-11 or you're worried about surveillance. This either-or proposition, when a lot of people say that's a false choice.
7: Bin Laden phone leak demonstrates how leak of spy operation could damage national security
Several media outlets have uncritically cited a 1998 Washington Times report on Osama bin Laden as an example of how leaking information about the Bush administration's domestic spying operation could harm national security. The media have falsely suggested that the Washington Times report revealed that the United States was monitoring bin Laden's conversations on a satellite phone and that bin Laden quickly ceased using the phone after the report surfaced. In fact, the article only noted that bin Laden was using a satellite phone, not that the U.S. was monitoring it; according to a December 22 report by The Washington Post, bin Laden apparently had stopped using the phone by the time any newspaper reported that the U.S. had been monitoring his conversations. Further, the Post noted that another report on bin Laden's phone -- that relied on the Taliban as its source -- preceded the Washington Times article by nearly two years, while another report predating the Times article relied on bin Laden himself.
One example of media misrepresenting the bin Laden incident occurred on the December 17 edition of CNN Live Saturday, when correspondent Brian Todd reported:
TODD: We asked one expert how important it is for the NSA and its methods to be kept so secret. He cited one breach as an example, the damage done when it was made public that intelligence agencies were monitoring Osama bin Laden's cell phone calls.
In a December 19 press conference, Bush also highlighted the purported bin Laden leak as an example of why leaking information about the domestic spying operation was a "shameful act" that is "helping the enemy":
QUESTION: Thank you, sir. Are you going to order a leaks investigation into the disclosure of the NSA surveillance program?
[...]
BUSH: My personal opinion is it was a shameful act, for someone to disclose this very important program in time of war.
The fact that we're discussing this program is helping the enemy.
[...]
BUSH: Let me give you an example about my concerns about letting the enemy know what may or may not be happening.
In the late 1990s, our government was following Osama bin Laden because he was using a certain type of telephone. And then the fact that we were following Osama bin Laden because he was using a certain type of telephone made it into the press as the result of a leak.
And guess what happened. Osama bin Laden changed his behavior. He began to change how he communicated.
But as the December 22 Post report documented, the August 21, 1998, Washington Times article in question "never said that the United States was listening in on bin Laden"; the article merely reported that bin Laden "keeps in touch with the world via computers and satellite phones." The Post also noted that the Washington Times report was not the first article to note bin Laden's use of a satellite phone: A December 16, 1996, Time magazine report cited the Taliban in reporting that bin Laden "uses satellite phones to contact fellow Islamic militants in Europe, the Middle East and Africa." And the day before the Times article, CNN terrorism analyst Peter Bergen cited a 1997 interview he conducted with bin Laden to report that bin Laden "communicates by satellite phone." Finally, the Post noted that it was not until "after bin Laden apparently stopped using his phone" that the Los Angeles Times first reported on September 7, 1998, that the U.S. had been monitoring his phone conversations. As a follow-up Post article on December 23 noted, bin Laden stopped using the phone "within days of a cruise missile attack on his training camps in Afghanistan."
The false claim that the Washington Times article was responsible for causing bin Laden to stop using the satellite phone apparently originated in the 9-11 Commission report, which asserted: "Worst of all, al Qaeda's senior leadership had stopped using a particular means of communication almost immediately after a leak to the Washington Times."
8: Gorelick testimony proved Clinton asserted "the same authority" as Bush
In a December 20 article headlined "Clinton Claimed Authority to Order No-Warrant Searches," National Review White House correspondent Byron York drew attention to then-Deputy Attorney General Jamie Gorelick's July 14, 1994, testimony before the House Intelligence Committee, in which she stated that the president has "inherent authority to conduct warrantless physical searches." While York's article did not explicitly draw a parallel between the Clinton administration's 1994 policy regarding such searches and the current Bush administration controversy regarding unwarranted domestic surveillance, conservative media figures such as National Review editor Rich Lowry and syndicated columnist Charles Krauthammer have done just that.
But Gorelick's testimony does not prove that the Clinton administration believed it had the authority to bypass FISA regulations, as the Bush administration has argued in the case of the NSA's domestic wiretapping program.
Unlike electronic surveillance, the "physical searches" to which Gorelick referred were not restricted by FISA at the time of her 1994 testimony. Therefore, by asserting the authority to conduct physical searches for foreign intelligence purposes, the Clinton administration was not asserting that it did not have to comply with FISA. In October 1994, Congress passed legislation -- with Clinton's support -- to require FISA warrants for physical searches. Thereafter, the Clinton administration never argued that any "inherent authority" pre-empted FISA. To the contrary, in February 1995 Clinton issued an executive order that implemented the new FISA requirements on physical searches.
By contrast, the Bush administration has argued that it has the authority to authorize surveillance of domestic communications without court orders, despite FISA's clear and longstanding restrictions on warrantless electronic eavesdropping.
9: Aldrich Ames investigation is example of Clinton administration bypassing FISA regulations
Some conservatives have specifically cited the joint CIA/FBI investigation of Aldrich Ames, a CIA analyst ultimately convicted of espionage, as an example of Clinton invoking executive authority to overstep FISA by authorizing a physical search of a suspect without a court order. For example, on the December 21 edition of CNN's The Situation Room, Republican attorney Victoria Toensing falsely claimed that the Clinton administration did "carry out that authority" to bypass the FISA requirements "when they went into Aldrich Ames's house without a warrant."
But as with Gorelick's testimony, the Ames investigation took place before the 1995 FISA amendment requiring warrants for physical searches. In other words, in conducting these searches, the Clinton administration did not bypass FISA because FISA did not address physical searches. Further, there is ample evidence that the Clinton administration complied with the FISA requirements that did exist on wiretapping: U.S. District Court Judge Royce C. Lamberth, who previously served on the FISA court, has noted the "key role" the court played in the Ames case to "authorize physical entries to plant eavesdropping devices"; and former deputy assistant attorney general Mark M. Richard established that "the Attorney General was asked to sign as many as nine certifications to the FISA court in support of applications for FISA surveillance" during the Ames investigation.
10: Clinton administration conducted domestic spying
Conservative media figures have claimed that during the Clinton administration, the NSA used a program known as Echelon to monitor the domestic communications of United States citizens without a warrant. While most have offered no evidence to support this assertion, NewsMax, a right-wing news website, cited a February 27, 2000, CBS News 60 Minutes report that correspondent Steve Kroft introduced by asserting: "If you made a phone call today or sent an email to a friend, there's a good chance what you said or wrote was captured and screened by the country's largest intelligence agency. The top-secret Global Surveillance Network is called Echelon, and it's run by the National Security Agency." NewsMax used the 60 Minutes segment to call into question The New York Times' December 16 report that Bush's "decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad."
On December 19, Limbaugh read the NewsMax article on his nationally syndicated radio show. Limbaugh told listeners that Bush's surveillance program "started in previous administrations. You've heard of the NSA massive computer-gathering program called Echelon. 60 Minutes did a story on this in February of 2000. Bill Clinton still in office." The Echelon claim has also been repeated by Wall Street Journal columnist John Fund and radio host G. Gordon Liddy.
The 60 Minutes report appears to have been based largely on anecdotal evidence provided by a former Canadian intelligence agent and a former intelligence employee who worked at Menwith Hill, the American spy station in Great Britain, in 1979. In addition, the report contained footage of an assertion by then-Rep. Bob Barr (R-GA) that "Project Echelon engages in the interception of literally millions of communications involving United States citizens." But the report also included comments from then-chairman of the House Permanent Select Committee on Intelligence Rep. Porter Goss (R-FL), who, Kroft reported, "still believes ... that the NSA does not eavesdrop on innocent American citizens." Kroft asked Goss: "[H]ow can you be sure that no one is listening to those conversations?" Goss responded, "We do have methods for that, and I am relatively sure that those procedures are working very well."
While Goss did not say in his 60 Minutes interview that the NSA does not spy on the domestic communications of Americans without a warrant, then-director of central intelligence George J. Tenet and then-National Security Agency director Lt. Gen. Michael V. Hayden said exactly that to Goss's committee less than two months later. As ThinkProgress has noted, Tenet testified before the intelligence committee on April 12, 2000. Denying allegations that Echelon was used to spy on Americans in the United States without a warrant, Tenet stated: "We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department." In the same hearing, Hayden testified: "If [an] American person is in the United States of America, I must have a court order before I initiate any collection [of communications] against him or her."
Hayden also denied the "urban myth" that the NSA "ask[s] others to do on our behalf that which we cannot do for ourselves." This appears to have been a response to the allegation -- noted by 60 Minutes -- that the NSA was exchanging information with foreign intelligence services that did monitor the domestic communications of Americans. Hayden stated: "By executive order, it is illegal for us to ask others to do what we cannot do ourselves, and we don't do it."
Tenet and Hayden's congressional testimony leaves two possibilities: Either they were not telling Congress the truth, or the claim that the NSA used the Echelon program to monitor the domestic communications of Americans is incorrect.
Hayden now serves as principal deputy director of national intelligence and has vigorously defended Bush's warrantless domestic surveillance program. At a December 19 press conference, he acknowledged that Bush's program goes beyond what is authorized under FISA. Hayden described it as "a more -- I'll use the word 'aggressive' program than would be traditionally available under FISA."
11: Moussaoui case proved that FISA probable-cause standard impedes terrorism probes
Some of the administration's supporters have attempted to defend the domestic surveillance program by pointing to a purported situation where the cumbersome FISA regulations prevented crucial intelligence gathering. In a December 20 Washington Post op-ed, Weekly Standard editor William Kristol and American Enterprise Institute resident scholar Gary Schmitt cited the 2001 case of Zacarias Moussaoui as evidence that the "difficulty with FISA is the standard it imposes for obtaining a warrant aimed at" a domestic target. Kristol and Schmitt claimed that the evidence the FBI had compiled against Moussaoui did not "rise to the level of probable cause under FISA":
Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI's attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don't rise to the level of probable cause under FISA.
But contrary to Kristol and Schmitt's argument that the probable-cause standard established by FISA was too high in this case, a 2003 Senate Judiciary Committee report found that the FBI's evidence against Moussaoui was, in fact, sufficient. The report instead asserted that FBI personnel who handled the warrant application "failed miserably" in their efforts to convince FBI attorneys that the threshold for establishing probable cause that Moussaoui was an "agent of a foreign power" (and therefore subject to surveillance pursuant to FISA) had been met .
The bipartisan report, compiled by Sens. Patrick Leahy (D-VT), Charles Grassley (R-IA), and Arlen Specter (R-PA), examined in detail the FBI's handling of the Moussaoui FISA application, which was delivered to FBI headquarters by the Minneapolis field office, handled by a supervisory special agent (SSA) there, and ultimately rejected as insufficient by FBI attorneys. The senators determined that the SSA in charge of the application provided the attorneys with a "truncated" version of the evidence compiled by the Minneapolis agents and failed to search for additional "information relevant to the application." Moreover, the report found that both the SSA and the attorneys had employed an "unnecessarily high standard" for probable cause -- one that exceeded the legal requirements set out by FISA:
In our view, the FBI applied too cramped an interpretation of probable cause and "agent of a foreign power" in making the determination of whether Moussaoui was an agent of a foreign power. FBI Headquarters personnel in charge of reviewing this application focused too much on establishing a nexus between Moussaoui and a "recognized" group, which is not legally required. Without going into the actual evidence in the Moussaoui case, there appears to have been sufficient evidence in the possession of the FBI which satisfied the FISA requirements for the Moussaoui application.
Despite this report's having established that the FBI's misunderstanding of the FISA requirements resulted in the rejection of the Moussaoui application, a December 23 New York Times article reported without challenge the FBI's argument that FISA's "cumbersome submission requirements" were to blame:
Some agents complained that the FISA court's cumbersome submission requirements and insistence on strict adherence to the law had contributed to the impression that the court itself was an obstacle to aggressive investigation of terror cases. As an example, these agents suggested F.B.I. lawyers did not seek a FISA warrant in the case of Zacarias Moussaoui, who was arrested shortly before the 2001 attacks, in part because they believed the court would reject it.
12: A 2002 FISA review court opinion makes clear that Bush acted legally
Recently, conservative media figures have misleadingly cited a 2002 opinion by the Foreign Intelligence Surveillance Court of Review (FISCR) to claim that the president could authorize warrantless domestic electronic surveillance despite FISA's restrictions. They have pointed to the court's reiteration of the president's inherent constitutional authority to conduct foreign intelligence surveillance without a warrant, which FISA cannot encroach upon. Therefore, they argue, Bush could authorize NSA's warrantless monitoring of "U.S. persons," regardless of FISA's restrictions.
But, as Media Matters documented, this argument is a red herring. Their citation of the decision to support the contention that Congress cannot encroach upon the president's constitutional authority ignores constitutional limits on that authority. Of course a law passed in 1978 would not trump the Constitution -- the supreme law of the land. The question is the scope of that presidential authority and whether it extends to acts that would violate the provisions of FISA protecting U.S. persons from excessive government intrusion. Contrary to these media figures' suggestions, the 2002 FISCR opinion does not address that question.
Regardless, media figures have asserted that the FISCR opinion supports the contention that Bush is not bound by FISA.
Most prominent among these has been National Review White House correspondent Byron York, who in a post on the National Review Online's weblog, The Corner, titled "READ THIS IMPORTANT ARTICLE," promoted a Chicago Tribune op-ed by John Schmidt, an associate attorney general under Clinton, supporting the legality of the administration's surveillance program. Schmidt wrote:
Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant. In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."
[...]
But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."
The Drudge Report website also cited Schmidt's Tribune op-ed with a link captioned "Associate attorney general under Clinton: President had legal authority to OK taps ..."
Similarly, a December 20 Wall Street Journal editorial asserted:
FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed.
The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that, "We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."
Fox News chief Washington correspondent Jim Angle made a similar claim on the December 20 edition of Fox News' Special Report with Brit Hume, stating, "In 2002, [FISA's] own court of review upheld the president's powers and pointed to an appeals court decision, noting that it, as did all other courts to have decided the issue, held that the president did have the inherent authority to conduct warrantless searches to obtain foreign intelligence information."
Others who have repeated this claim in the media include Bradford Berenson, a former associate White House counsel, who made the assertion on the December 21 broadcast of PBS' The NewsHour with Jim Lehrer. Berenson worked in the Bush White House from 2001 to 2003, and after the September 11 attacks "played a significant role in the executive branch's counterterrorism response."
Katz v. United States Supreme Court case - Justice White rules that in "national security cases" (as is the case of terrorism) electronic surveillance is allowed without judicial approval with the consent of the President or the Attorney General. The Executive Branch in this case has the power to wiretap and to "bug" against "domestic subversion and against foreign intelligence operations, basing its authority of "inherent presidential power" and the ruling that in such cases it is reasonable search and seizure (for it is in the interest of America, being national security). There was nothing illegal about what was done, however... that does not mean you shouldn't work to make it illegal. If you honestly feel this presses on your rights, then try to get new laws about it. The right to privacy does not extend to international communications on the basis of spies and security of the nation...
Where did you get this talking point?
Yet another person pretending he has more legal expertise than he does. If Katz vs. US really supported Bush, why have so many legal scholars--including conservative ones--unequivocally stated Bush broke the law? Did they not know about Katz?
Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.
Issues of National Security are totally outside the scope of this decision and the comments taken from one of the Justices' opinions doesn't change that.
Nice try though.
The actual DESCISION of the court -- which is what constitutes authoritative interpretation -- says "Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case."
It is true that in his CONCURRANCE White wrote: In joining the Court's opinion, I note the Court's acknowledgment that there are circumstances in which it is reasonable to search without a warrant. In this connection, in footnote 23 the Court points out that today's decision does not reach national security cases. Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. See Berger v. New York, 388 U.S. 41, 112 -118 (1967) (WHITE, J., [389 U.S. 347, 364] dissenting). We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.
HOWEVER, yet another Concurrance in the SAME case, this one by Douglas, joined by Brennan. They wrote: The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate.
Hardly the ringing endorsement of presidential power you would claim.
Does the Fourth Amendment protection against unreasonable searches and seizures require the police to obtain a search warrant in order to wiretap a public pay phone?
Yes. The Court ruled that Katz was entitled to Fourth Amendment protection for his conversations and that a physical intrusion into the area he occupied was unnecessary to bring the Amendment into play. "The Fourth Amendment protects people, not places," wrote Justice Potter Stewart for the Court. A concurring opinion by John Marshall Harlan introduced the idea of a 'reasonable' expectation of Fourth Amendment protection.
The writer that referred to this case apparently is confused.
QUOTE: The Government's duty to preserve the national security did not override the gurarantee that before government could invade the privacy of its citizens it must present to a neutral magistrate evidence sufficient to support issuance of a warrant authorizing that invasion of privacy.153 This protection was even more needed in ''national security cases'' than in cases of ''ordinary'' crime, the Justice continued, inasmuch as the tendency of government so often is to regard opponents of its policies as a threat and hence to tread in areas protected by the First Amendment as well as by the Fourth.
[link to supreme.lp.findlaw.com]
Amazing how hard Republicans/Conservatives are trying everything in the world to avoid admitting the truth...Bush broke the laws of our nation.
Most importantly Katz was decided before FISA was passed. Consequently, its importance is limited. Moreover, the core issue is not the executive's inherent constitutional powers in the absence of legislation, rather it's the executive's power in the presence of countervailing legislation. Inherent powers, be they executive, legislative, or judicial, are fuzzy especially at the margins. One of the more useful SC cases analyzing executive power is the Youngstown case where Justice Jackson in a concurring opinion describes how executive power waxs and wanes based on congressional support.
No, I don't see anything about wiretaps on American citizens without a warrant here...
Hogwart wrote: "We are at war with an enemy that will stop at nothing to change our way of life" --------------------------------------------------------------------------------------------------------------- Perhaps you Bush Loyalists haven't noticed, but the enemy already HAS changed our way of life. We now ignore Geneva Conventions, we confine people indefinitely without any legal representation, the Veep wants to be able to use torture and now Bush Loyalists are defending the President's right to spy on American citizens without a warrant.
It is not us "wisacres" who want the enemy to change our way of life. It is cowards who give the President blank check authority to do whatever he pleases so they don't have to feel so scared. That is how the enemy is changing our way of life. They've created a bunch of paranoid cowards who try to pass themselves off as tough guys.
Instead of calling Democrats spineless, take a long hard look in the mirror. We're trying to protect our way of life. Bush Loyalists would toss it away for a false sense of security.
Amen, and well said.
Most people will agree that a LEGITIMATE reason for going outside strict legal restrictions is acceptable, on a case-by-case basis. That is why the LAW is written to enable RETROACTIVE approval. Act immediately, and you have up to 72 hours to justify your actions. If you have the probable cause, it's OK. You're cleared.
This is too much scrutiny and oversight for Bush. He wishes to operate with NOBODY questioning his actions, as they violate our Constitution.
The TEST is: If he's allowed to do this for LEGITIMATE reasons, what's to prevent him from doing it for ILLEGITIMATE reasons? The Rightwingers say, "TRUST alone". That's totally unacceptable. That's TYRANNY. That's the OPPOSITE of freedom, liberty, and democracy.
So, will Bush get away with this ultimate power grab? Rightwingers think we SHOULD have a dictatorship at time of war, and because we are frightened of the spectre of a terrorist, we should abandon our rights.
None is more cowardly than the fearful who do not hold their FREEDOM as paramount. I'd rather fight the terrorists in our STREETS than to give up and abandon our way of life, hoping (based on TRUST ALONE) that a leader will keep me safe. Especially when that leader has proven time and again to be absolutely UNTRUSTWORTHY.
Not even a good try. Where does it mention wiretaps again? In what universe are domestic wiretaps included in all force necessary against the purpetrators of 9/11? How many of those 9/11 hijackers were Americans again? This is not a trump card its a trey no trump
MMFA says the proposition that “authorization of domestic surveillance by the NSA without warrants is legal under FISA” is a false claim. It then quotes bits from the FISA provision, 50 USC §1802(a), which does precisely that!
MMFA grouses that these FISA–provided warrantless searches are not limitless. MMFA did not posit a claim that FISA authorizes unlimited warrantless searches.
MMFA also argues its myth number 3 after inserting an additional factor: that the targets are Americans. That, too, is a phantom point. MMFA did not assert a claim for warrantless searches of Americans.
The myths here are MMFA’s.
FISA permits warrantless surveillance of Hezbollah to Hezbollah e–mail. FISA permits warrantless recording of certain calls to US telephone numbers found in al-Zarqawi’s address book. MMFA has no idea what warrantless surveillance the Administration might have conducted.
Note - these posts are being monitored by NSA for quality control and anti-terrorism purposes.. So is your email, phone calls, online video gaming, online purchasing & banking, etc. etc. etc.
In #3 above, you state, "FISA also allows the president and the attorney general to conduct surveillance without a court order for the purpose of gathering 'foreign intelligence information' for 'a period' no more than 15 days 'following a declaration of war by the Congress.'" You neglect to point out that Congress has NOT formally declared war, either on "terror" or on Iraq; hence, that defense is unavailable to Bush as well.
Nice summary of key points, MMFA! If these are 'Talking Points,' as some suggest above, then so be it. Facts are always the best talking points. I do have two small quibbles, however: 1. In your discussion of Congressional notification and use of the FISA court, you didn't mention the fact that the administration secretly briefed the presiding judge of the FISA Court about the NSA evesdropping activities. I don't think those briefings actually change anything about the legality of NSA's domestic spying. However, they do complicate the picture.
2. A bigger problem arises with the FISA 15 day rule. As MMFA notes: "FISA also allows the president and the attorney general to conduct surveillance without a court order for the purpose of gathering "foreign intelligence information" for "a period" no more than 15 days "following a declaration of war by the Congress." "
Although I think that MMFA's interpretation is correct, several commentators have pointed out that the FISA wording is actually ambiguous, and might mean something different. FISA's 15 day rule could be interpreted to mean that, following a declaration of war, the President is empowered to conduct surveillance for 15 days in each instance without the need of a court order. It's important to go back and look at the commentary associated with the original law, and the subsequent case interpretation. I don't know what that shows.
Thank you kindly, Dee. As I posted on these threads some six months ago, George W. Bush will go down in history as the President who singlehandedly destroyed the Republican Party.
And deservedly so, for the GOP has abandoned any claim to be the party of 'CONSERVATISM' having abrogated all of its unifying principles in a scorched earth policy of war mongering-profiteering, crony-capitalism,constitution-gutting in a quest to pander to an elite cabal of NeoConmen WHO have no reservation about sending America's young sons and daughters to untimely deaths......All shrouded in a subterfuge of the, 'War on Terror'.
Before it all through, the labels will not mean anything. There will be only Americans with the common sense to rid this Country and Planet of a corrupt cadre of enterprising criminalists, false flag patriots......... And just maybe WE might restore Constitutional sage guards in order to prevent any re-appearance in the future from the Right or Left of such a blight on this Constitutional Republic.
"Before it all through, the labels will not mean anything. There will be only Americans with the common sense to rid this Country and Planet of a corrupt cadre of enterprising criminalists, false flag patriots......... " Navy_Guy
Very wise words Navy_Guy, thank you!
This is the problem with debate...not unlike the elections, it always turns into stone throwing and meaningless topics. I believe the original topic had to do with violation of civil liberties and potentially illegal spying.
To be honest, I am a conservative - there are many liberal points that i simply do not agree with. However, come on...lets cut to the chase regarding this one. There is nothing conservative or compassionate about this President or administration. These are not normal republicans. I have seen abuse of powers and arrogance that I have never seen before.
Read between the lines...this domestic spying is just another form of abuse. Regardless of how the lawyers twist the legal language and determine if it was legal or illegal, the bottom line is that it was immoral. The basic fact we are missing is that FISA allows a 72 hour grace period before seeking a warrant. The President could have immediately ordered survelliance and followed up with a warrant shortly after - this would not have impeded his ability to protect the country or prevent terrorism. For him to not follow up later clearly shows he had no just cause for his actions and knew FISA would not grant such a warrant - perhaps the intelligence the President based his spying criteria on is the same intelligence that said Iraq had weapons of mass destruction??
As far as claims of Clinton did it, Carter did it, etc... I don't know the whole truth to that and really don't care - someone got their hand caught in the cookie jar and we need to deal with it. If Clinton or Carter did it, they were wrong, and it doesn't make what Bush did any less wrong or moral. Come one people.... don't be mindless morons and support Bush no matter what he does! Democrat or Republican - if you enjoy your civil liberties and respect the country in which you live, you would agree this was wrong. The only way the terrorists can win is by forcing us to sacrifice the foundation for which our country was founded - it appears they are winning.
Again, I am a conservative and have supported Bush on a number of his initiatives and have been critical of the partisan BS. You will always have different view points on the economy and domestic issues. However, this is something I will not support the President on - it is immoral, wrong, and violates our civil rights. The fact of the matter is that Bush was not simply trying to protect America - if that was his goal, he had legal options through FISA that would not have impeded this ability. Clearly, this demonstrates an abuse of power that I have seen consistent with this administration over the last couple of years.
I think you will see this issue elevate and see some bipartisan unity. Clearly, many GOP members have taken concern to this issue....the President is going to find himself on an island regarding this issue. Woth legal mumbo jumbo I doubt this will be found as clearly "illegal", but certainly it is immoral and bipartisan support will at least force immediate changes.
The excuses made for Dubya are disturbing, as is the media attention given to them.
1) The FISA law was set up for the purpose of keeping the White House complinat to the Constitution.
2) Laws, legislation, and judicial decisions are to comply to the Constitution--it is NOT for the Constitution to comply to laws, legislation, or judicial decisions, especially decisions by judges who are beholden to the person or party that gets them appointed.
3) Breaking the FISA law in any form, by itself, renders Dubya a felon.
4) Whereas breaking the FISA law rendered Dubya out of compliance with the Constitution, he's a felon under Amendment 4, Article 2 Section 2 (which puts him as commander in chief only over the military and state militias) and for any claim he's made about getting granted "extended powers", he's also in violation of the 10th Amendment which limits all branches of government to those expressed in the Constitution, reserving all other powers to the States and to the people.
5) The Constitution cannot be altered, modified, or edited by rulings, laws, or statutes. That would be in violation of Article 5--only an Amendment can change it or another Amendment.
6) No branch of government has the power to grant another branch of government "extended" or interpreted-in-by-calling-them-inherent because this is prohibited by the 10th Amendment.
7) The Constitution is the supreme law of the land--not legislation, not inferior court judicial opinion, not even a Supreme Court decision blatantly counter to any of the Constitution's express provisions, especially the 10th Amendment which limits the Supreme Court to express powers only.
Gee--there's never a Strict Constructionist around when ya need one. Or a States' Rights experts on the 10th Amendment either, for that matter.
Even if the "implied" powers which the administration and its' supporters believe accrue to the executive in a "time of war" could be established (they haven't), there would also have to exist a clear and explicit statement which makes clear that these vague, implicit, implied powers over-ride or invalidate the explicit grant of the fourth amendment that individuals will be "secure in their persons, papers, and effects" from unreasonable search and seizure.
Of course, anyone who thinks for a minute about this issue can readily ascertain the nonsensical nature of the Yoo/Bush rationale for "implied" executive powers of the "commander in chief" in a "time of war". Ironic, of course, that the party which claims to embrace "strict constructionism" and decry "activist judges" would simultaneously espouse the notion of "implied" powers which trump the explicit grant of rights in the Constitution. Even more so that a cabal which first usurped an office which did not rightfully belong to them would then claim extraordinary powers for that office which had never been noticed before in our more than 200 year history.
Finally, I would like anyone who supports Bush to please name one thing he could do that would be considered "going too far". What would Bush have to do that he hasn't already done that you would consider an abuse of power? Anyone?
Hey Johnny;
I can't help but want to steal that whole explanation, to the point, simple, precise, loved it. Thanks for making the point the right way.
This format splits my gut, and scares me sick. I have been holding onto that thread of sanity through this whole ordeal of a Bush/Chaney nightmare orchestrated by a mad media guy Karl Rove.
I remember all the books, film, and conspiracys we lived through during the Cold War, and I can't help but think of Dr. Stranglove meeting Network in my dreams awake, and asleep. Thank you, Man.
Happy Thoughts;
Dan Grady
Well, well, Buckman
In the course of a few paragraphs, You seem to have presented a case for the complete and utter evisceration of the Constitution, VIOLATED every post WW2 international treaty the US is signatory to... which incidentally was to large part written by American Military Jurists under both Democratic and Republican administrations. These same provisions are are now part of the US Army Field Manual as well as CRIMES AGAINST HUMANITY and if followed could result in Courts Martial attested to by the provisions soldiers must follow according to the dictates of the Uniform Code of Military Justice.
So take your jingoistic rants somewhere else, as you are deluded enough to warrant some Psychological counseling.... OR just go take your MEDS as you sit down to another joystick session, playing macho 'War Guy' courtesy of some Tom Clancy Nintendo game.