Following President Bush's State of the Union address, various media figures described his defense of domestic eavesdropping as "strong," "vigorous," and "fierce." But they failed to note the numerous inaccuracies Bush employed in justifying the surveillance program, whose legality has been challenged not just by Democrats, but by Republicans and some prominent conservative legal scholars as well.
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Following President Bush's January 31 State of the Union address, during which he defended the administration's warrantless domestic surveillance program, various media figures described Bush's defense of domestic eavesdropping as "strong," "vigorous," and "fierce." But they failed to note the numerous inaccuracies Bush employed in justifying the program, whose legality has been challenged not just by Democrats but by Republicans and some prominent conservative legal scholars as well.
Bush's defense of warrantless domestic surveillance, from his State of the Union address:
BUSH: It is said that prior to the attacks of September the 11th, our government failed to connect the dots of the conspiracy. We now know that two of the hijackers in the United States placed telephone calls to Al Qaeda operatives overseas, but we did not know about their plans until it was too late. So, to prevent another attack -- based on authority given to me by the Constitution and by statute -- I have authorized a terrorist surveillance program to aggressively pursue the international communications of suspected Al Qaeda operatives and affiliates to and from America. Previous presidents have used the same constitutional authority I have, and federal courts have approved the use of that authority. Appropriate members of Congress have been kept informed. The terrorist surveillance program has helped prevent terrorist attacks. It remains essential to the security of America. If there are people inside our country who are talking with Al Qaeda, we want to know about it because we will not sit back and wait to be hit again.
As Media Matters for America has previously noted, nearly every argument Bush made in defense of the program is either false or misleading:
"We now know that two of the hijackers in the United States placed telephone calls to Al Qaeda operatives overseas, but we did not know about their plans until it was too late."
As Media Matters noted, it was apparently not for a lack of intelligence that Nawaf al-Hazmi and Khalid al-Mihdhar, the two hijackers to whom Bush apparently referred, were not captured -- the government had information on the two men more than a year before the 9-11 terrorist attacks. Instead, bureaucratic entanglements and miscues by federal law enforcement and intelligence agencies, as described by the 9-11 Commission and congressional investigators, allowed al-Hazmi and al-Mihdhar to remain free.
"So, to prevent another attack -- based on authority given to me by the Constitution and by statute -- I have authorized a terrorist surveillance program to aggressively pursue the international communications of suspected Al Qaeda operatives and affiliates to and from America."
The "statute" to which Bush apparently referred is Joint Resolution 23 -- Authorization for Use of Military Force (AUMF) -- which was passed by Congress in the days following the 9-11 attacks, authorized the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." The administration has often cited AUMF as legal justification for the surveillance program. A January 5 report by the nonpartisan Congressional Research Service (CRS) noted that "the Administration asserts that a part of the Foreign Intelligence Surveillance Act (FISA) that punishes those who conduct "electronic surveillance under color of law except as authorized by statute" does not bar the [National Security Agency] NSA surveillance at issue because the AUMF is just such a statute." However, the CRS report also concluded that the AUMF did not repeal FISA's requirement to obtain a warrant when conducting domestic electronic surveillance:
Where Congress has passed a declaration of war, 50 U.S.C. § 1811 [FISA] authorizes the Attorney General to conduct electronic surveillance without a court order for fifteen calendar days following a declaration of war by Congress. This provision does not appear to apply to the AUMF, as that does not constitute a congressional declaration of war. Indeed, even 90 if the authorization were regarded as a declaration of war, the authority to conduct warrantless electronic surveillance under 50 U.S.C. § 1811 would only extend to a maximum of 15 days following its passage.
Overall, the CRS report further 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," as Media Matters noted. *
Moreover, members of Bush's own Justice Department were unconvinced the program was constitutional. As Newsweek reported in its February 6 edition, a number of former Bush administration officials objected to vast expansions of executive authority to conduct the "war on terror," such as the NSA program.
Additionally, in 2002, the Justice Department refused to support a bill that would have lowered the threshold for obtaining a FISA warrant to conduct electronic surveillance of non-U.S. persons, contending that such a change might not be constitutional, as Media Matters noted. Specifically, the Justice Department wrote that the bill offered by Sen. Mike DeWine (R-OH) to lower FISA standards might not "pass constitutional muster," even while Bush was -- and is -- authorizing surveillance wholly independent of FISA standards.
"Previous presidents have used the same constitutional authority I have ..."
As Media Matters noted, conservative media figures have often pointed to the 1995 testimony of then-Deputy Attorney General Jamie Gorelick before the House Intelligence Committee as proof that President Clinton asserted "the same authority" as Bush regarding warrantless surveillance. However, 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.
Additionally, the Think Progress weblog noted on December 20 that executive orders by Clinton and President Jimmy Carter regarding warrantless surveillance were merely explaining FISA's restrictions on the conduct of searches on "United States persons." Subsequent reports by NBC chief foreign affairs correspondent Andrea Mitchell and The Washington Post also debunked the claim while noting that it was highlighted in the December 21 RNC press release.
"... and federal courts have approved the use of that authority."
As CRS wrote, and as Media Matters previously noted, no court has ruled on the sort of conduct in which the Bush administration has engaged -- authorizing the surveillance of communications involving people in the United States without obtaining a warrant, in apparent violation of FISA. According to the CRS report:
Court cases evaluating the legality of warrantless wiretaps for foreign intelligence purposes provide some support for the assertion that the President possesses inherent authority to conduct such surveillance. The Court of Review, the only appellate court to have addressed the issue since the passage of FISA, "took for granted" that the President has inherent authority to conduct foreign intelligence electronic surveillance under his Article II powers, stating that, "assuming that was so, FISA could not encroach on that authority." However, much of the other lower courts' discussions of inherent presidential authority occurred prior to the enactment of FISA, and no court has ruled on the question of Congress's authority to regulate the collection of foreign intelligence information.
"Appropriate members of Congress have been kept informed."
As Media Matters noted, of the seven Democratic lawmakers known to have been briefed about the program, three have said they objected at the time, and three more claim they were inadequately apprised of the program's nature and scope. On the December 16 broadcast of ABC's Nightline, former Sen. Bob Graham (D-FL) claimed he was not informed of the program at all and maintains he was not told the warrantless eavesdropping program would be directed at U.S. citizens. A separate CRS report, released January 18, said that the Bush administration's limited notification of Congress about the domestic surveillance program "appear[s] to be inconsistent with the law."
A January 17 New York Times article cited "current and former officials" in challenging the effectiveness and utility of the program. According to the Times:
In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month. But virtually all of them, current and former officials say, led to dead ends or innocent Americans."
Following the warrantless domestic surveillance program's public disclosure in a December 16 Times article, administration officials and conservative commentators pointed to the arrest of Al Qaeda accomplice Iyman Faris as proof of the program's efficacy. Faris, a naturalized U.S. citizen and an acquaintance of the alleged mastermind of the 9-11 attacks, Khalid Shaikh Mohammed, plotted to bring down the Brooklyn Bridge by cutting its suspension cables with blowtorches. However, as Media Matters noted, the January 17 Times article indicated that information gleaned from the eavesdropping program did not play "a significant role" in Faris's capture.
Notwithstanding these numerous false or misleading assertions, CNN host Paula Zahn, CNN senior analyst Jeff Greenfield, CNN chief national correspondent John King, Fox News Washington bureau chief Brit Hume, Fox News host Chris Wallace, and CBS news contributor Gloria Borger all uncritically praised Bush's defense of the surveillance program during their post-speech coverage.
From CNN's post-speech coverage:
ZAHN: These certainly are things we've heard him talk about before, fiercely defending NSA wiretapping, but we also have to be honest that the Democrats, according to polls, have not given the American public a unified voice or any alternatives to really consider here.
GREENFIELD: Ten days ago, the president's political guru Karl Rove told a group of Republicans, "We're going to run this campaign essentially on national security in the midterms." They won the midterms in 2002 on that issue. I think they won the presidential election last time largely on it. And the strongest part of the president's speech was defending the controversial warrantless wiretaps, where he used the same kind of approach he's used in this field before: "I'm going to protect this country, I'm not going to let it sit back and wait to get hit again. We've protected the country from future terrorist attacks," and by implication, "My critics will not be as strong on this issue."
KING: There is the domestic surveillance program -- the president emphatically defending that tonight; hearings in Congress next week on that program. They think they will win that debate but it's a dicey one.
From Fox News' post-speech coverage:
HUME: He made a very strong defense, at least in his tone, of what he calls the "terrorist surveillance program." That, of course, that electronic intercept program engaged in by the National Security Agency, which intercepts telephone calls to and from Al Qaeda operatives and those believed to be Al Qaeda operatives -- inside -- from calls picking up conversations involving people inside the United States with people outside the United States believed associated with that terrorist organization.
WALLACE: And the thing that struck me about the speech tonight is the degree to which, particularly on foreign policy, he didn't give an inch. I mean, he talked about criticism of his policy on Iraq as retreat. There's been criticism, of course, of his policy on the NSA wiretapping, and he made it clear he thought he was particular -- completely within his legal rights and very much within his duty of protecting the country to continue that program. I thought it was -- there was no give whatsoever in the president, either at lunch or in his speech tonight when it came to foreign policy.
From CBS' post-speech coverage:
BORGER: I also believe, quite frankly, that the Democrats believe they have a pretty clear agenda lined out for themselves heading into the midterm elections, and that they want to distinguish themselves from George W. Bush, rather than joining themselves with the president. And I might also add that the president was very firm in his defense of those warrantless wiretaps performed by the National Security Agency. He did not back down one bit, nor did he back down in calling for renewal of the [USA] Patriot Act in March.
Similarly, The New York Times, in a February 1 article on the State of the Union address, reported Bush's remarks about the domestic surveillance program without noting any of Bush's inaccuracies, describing his defense of the program as "vigorous." According to the Times: "Mr. Bush continued his vigorous defense of his administration's secret program of eavesdropping without warrants and suggested that it could have caught some of the Sept. 11 hijackers, although he provided few details." By contrast, The Washington Post noted some of Bush's inaccuracies and misleading statements in a February 1 article:
In his State of the Union address last night, President Bush waded right in the middle of the debate over his warrantless domestic eavesdropping program, making a number of assertions that have been subject to intense debate.
For instance, Bush strongly suggested that the Sept. 11, 2001, attacks could have been prevented if the phone calls of two hijackers had been monitored under the program. This echoes an assertion made earlier this year by Vice President Cheney.
But the Sept. 11 commission and congressional investigators said the government had compiled significant information on the two suspects before the attacks and that bureaucratic problems -- not a lack of information -- were the main reasons for the security breakdown. The FBI did not even know where the two suspects lived and missed numerous opportunities to track them down in the 20 months before the attacks.
Bush also asserted that "previous presidents have used the same constitutional authority I have." But the most recent example cited by the administration -- involving actions by President Bill Clinton -- is hotly disputed by Democrats who say the current and past situations are not comparable.
The Foreign Intelligence Surveillance Act (FISA), which required the executive branch to get approval from a secret court before conducting wiretaps within the United States, was silent on warrantless physical searches of suspected spies or terrorists. So the Clinton administration asserted that it had the authority to conduct such "black bag" jobs, including searches of CIA turncoat Aldrich Ames's house, which turned up evidence of his spying for Russia.
Clinton later sought amendments to FISA that brought physical searches, as well as wiretaps, under the FISA framework. Bush has never sought such amendments, and he did not publicly acknowledge the program until it was revealed in news reports.
In other sections of his speech, Bush omitted context or made rhetorical claims that are open to question.
National Public Radio also provided a "Fact Check" of the State of the Union address on the February 1 broadcast of Morning Edition, in which it explained many of the problems with Bush's defense of the warrantless domestic surveillance program.
* 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.