Former DOJ employees Rivkin and Casey defended NSA program as having a "minimized ... domestic footprint," contradicting media reports

››› ››› ROB MORLINO

In an op-ed in The Wall Street Journal, attorneys David B. Rivkin Jr. and Lee A. Casey defended President Bush's warrantless domestic surveillance program by repeating the claim that the program monitors only the communications of "Al Qaeda operatives" either out of or into the United States and that its "domestic footprint" was "minimized." In fact, as Media Matters has previously noted, the program has reportedly cast a broad net and monitored communications of thousands of people with no connection to Al Qaeda.

In a February 8 Wall Street Journal opinion article (subscription required), David B. Rivkin Jr. and Lee A. Casey, former Justice Departments officials under presidents Ronald Reagan and George H. W. Bush, defended President Bush's National Security Agency (NSA) warrantless domestic wiretapping program by repeating the claim made by former NSA director Gen. Michael V. Hayden that the program monitors only the communications involving "Al Qaeda operatives" either out of or into the United States. Like Hayden, Rivkin and Casey also asserted that media reports of the program show that its "domestic footprint" was "minimized."

However as Media Matters for America previously noted, media reports about the program indicate that the program is far from limited to "Al Qaeda operatives" and far from having a minimal domestic scope. Rather, it has reportedly cast a broad net, monitoring the communications of thousands of people with no relationship to Al Qaeda. Most recently, a February 5 Washington Post report quoting "current and former government officials" said that "[i]ntelligence officers who eavesdropped on thousands of Americans in overseas calls under authority from President Bush have dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat." The New York Times similarly reported on January 17 that "[m]ore than a dozen current and former law enforcement and counterterrorism officials," some of whom knew of the domestic spying program, "said the torrent of tips [from NSA wiretapping] led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive."

Notwithstanding those reports, Rivkin and Casey echoed Hayden's January 23 description of the program, saying that "communications entirely within the U.S. are not targeted, and only those international communications involving al Qaeda on one end are collected and analyzed," adding, "All else is speculation (or wishful thinking) by the administration's political opponents."

From the February 8 edition of The Wall Street Journal:

Although enhanced congressional oversight of the NSA program may well be constitutionally permissible and even sensible as a policy matter, the requirement of a warrant for this type of surveillance would trench upon the president's constitutional power as commander in chief to monitor enemy communications in wartime. Far from being a "pervasive" domestic spying program, the NSA has simply intercepted the communications of al Qaeda operatives into, or out of, the U.S. As described by former NSA director, Gen. Michael V. Hayden, communications entirely within the U.S. are not targeted, and only those international communications involving al Qaeda on one end are collected and analyzed. All else is speculation (or wishful thinking) by the administration's political opponents.

Even the NSA program's fiercest foes don't claim that it was designed or administered for snooping on the president's "enemies" or critics. Surveillance is conducted by career intelligence officials at an agency renowned for discretion and professionalism. Nor has the administration ignored privacy interests and congressional prerogatives. According to media accounts, administration officials have minimized the program's domestic footprint -- effectively limiting it to the collection of battlefield intelligence, or the practical equivalent, which is squarely within the president's constitutional authority.

From the January 17 edition of The New York Times:

"We'd chase a number, find it's a school teacher with no indication they've ever been involved in international terrorism -- case closed," said one former FBI official, who was aware of the program and the data it generated for the bureau. "After you get a thousand numbers and not one is turning up anything, you get some frustration.

From the February 5 edition of The Washington Post:

Intelligence officers who eavesdropped on thousands of Americans in overseas calls under authority from President Bush have dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat, according to accounts from current and former government officials and private-sector sources with knowledge of the technologies in use.

Bush has recently described the warrantless operation as "terrorist surveillance" and summed it up by declaring that "if you're talking to a member of al Qaeda, we want to know why." But officials conversant with the program said a far more common question for eavesdroppers is whether, not why, a terrorist plotter is on either end of the call. The answer, they said, is usually no.

Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause.

The Bush administration refuses to say -- in public or in closed session of Congress -- how many Americans in the past four years have had their conversations recorded or their e-mails read by intelligence analysts without court authority. Two knowledgeable sources placed that number in the thousands; one of them, more specific, said about 5,000.

The program has touched many more Americans than that. Surveillance takes place in several stages, officials said, the earliest by machine. Computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, e-mails and telephone calls into and out of the United States before selecting the ones for scrutiny by human eyes and ears.

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