CBS News, LA Times , Wash. Post reported Bush's assertion of legal authority in wiretapping, ignored reports questioning his defense

››› ››› ROB MORLINO

CBS, the Los Angeles Times, and The Washington Post reported without challenge the disputed claim that President Bush has the legal authority to instruct the National Security Agency to conduct electronic surveillance of people in the United States without obtaining warrants.

The Los Angeles Times, The Washington Post, and the CBS Evening News reported without challenge President Bush's January 11 assertion that he acted legally in authorizing a National Security Agency (NSA) program that, according to The New York Times, involved the electronic surveillance of persons within the United States without obtaining warrants pursuant to the Foreign Intelligence Surveillance Act (FISA). In contrast, other outlets that reported Bush's remarks, including The New York Times and USA Today, noted that the NSA program's legality has not been established, citing two reports -- one by the nonpartisan Congressional Research Service (CRS) and the other by a former general counsel to the CIA -- that questioned Bush's legal defense of the wiretapping.

Following Bush's remarks in Louisville, Kentucky, anchor Bob Schieffer reported for the January 11 broadcast of the CBS Evening News:

SCHIEFFER: President Bush softened his opposition today to congressional hearings on the secret program he authorized to eavesdrop on Americans. Mr. Bush said in a speech in Louisville today that hearings would be good for democracy if, he said, they do not give away information to what he called the enemy. The president again insisted he does have the legal authority to authorize such programs.

In the January 12 edition of the Los Angeles Times, staff writer James Gerstenzang also reported:

Bush said that before moving forward with the program, "I wanted to make sure I had all the legal authority necessary."

He repeated earlier assertions that the congressional resolution passed after the Sept. 11 attacks gave him the authority to use all force he thought necessary to fight terrorists, and that the spying program fell under that authority.

"There will be a lot of hearings and talk about that," Bush said, "but that's good for democracy -- just so long as the hearings, as they explore whether I have the prerogative to make the decision I made, doesn't tell the enemy what we're doing. See, that's the danger."

In contrast, reports on the president's remarks in The New York Times and USA Today also noted the release this week of a report requested by Rep. Jane Harman (D-CA), ranking Democrat on the House intelligence committee, and authored by former CIA general counsel Jeffrey H. Smith, who has previously testified as an expert witness before the committee on intelligence gathering issues. Smith's report characterized as "weak" and "not credible" Bush's claims that the program is legally sanctioned by his powers as chief executive.

In addition, in a January 7 report, The Washington Post summarized the CRS report's conclusions, stating that "the administration's justification for the warrantless eavesdropping authorized by President Bush conflicts with existing law and hinges on weak legal arguments."* However, in a January 12 article, staff writer Michael A. Fletcher reported on Bush's remarks in Louisville without mentioning either the CRS or Smith reports:

President Bush on Wednesday defended his decision to allow government eavesdropping on the phone calls and e-mails of suspected terrorist collaborators in the United States, saying the program is legal and is essential to averting potential attacks.

"I understand people's concerns about government eavesdropping," Bush said in response to a question about the program during a citizens forum here. "I share their concerns as well." Even so, he added, the program is important to his duty to protect Americans.

Bush's comments on the eavesdropping program came in response to a question posed during a campaign-style event here aimed at shoring up support for the war in Iraq as well as the nation's broader anti-terrorism effort.

[...]

The domestic spying program has drawn fire from members of Congress, both Democrats and Republicans, who think it oversteps the president's authority and violates civil liberties that are part of the nation's fiber. The National Security Agency program began in the aftermath of the Sept. 11, 2001, terrorist attacks as a way to help the nation's intelligence agencies gather information about any future attacks.

From the January 12 New York Times article:

The president's legal justification for the N.S.A. program has gotten mixed reviews, ranging from enthusiastic to skeptical to scathing.

This week, Representative Jane Harman of California, the top Democrat on the House Intelligence Committee, released a 14-page legal analysis she had requested from a former C.I.A. general counsel, Jeffrey H. Smith, now a Washington lawyer.

Although recognizing the president's assertion that his power as commander in chief justifies warrantless surveillance, Mr. Smith called that case "weak" in light of the language and documented purpose of the Foreign Intelligence Surveillance Act of 1978, which requires warrants.

From the January 12 USA Today article:

Bush said Wednesday that administration lawyers had approved the program. "I can understand concerns about this program," he said. "Before I went forward, I wanted to make sure I had all the legal authority necessary to make this decision."

For the second time in a week, however, an analysis questioned the White House's claims that Congress implicitly authorized the program. Such a contention is "not credible," according to a memo to the House Intelligence Committee by Jeffrey H. Smith, a CIA counsel during the Clinton administration.

Smith's Jan. 3 memo was requested by committee Democrats. It follows a report by the non-partisan Congressional Research Service that said the surveillance program might not be "well grounded" legally and may rest on a mistaken assumption that Congress has no power to limit domestic surveillance in wartime. The report said a firm conclusion couldn't be made because much about the surveillance program is classified.

* 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.

Correction: 

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Posted In
Justice & Civil Liberties, Domestic Spying
Network/Outlet
The Washington Post, CBS, Los Angeles Times
Person
Bob Schieffer
Show/Publication
CBS Evening News
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