Wash. Post falsely depicted spy program critics as "some Democrats"

››› ››› RAPHAEL SCHWEBER-KOREN

A Washington Post article about the Bush administration's warrantless domestic surveillance program falsely claimed that the program's critics are "some Democrats." In fact, many Republicans, including Senate Judiciary Committee chairman Arlen Specter, also disagree with the administration's legal justifications for the program.

A February 10 Washington Post article by staff writer Jim VandeHei falsely characterized those who "argue that [President] Bush is breaking the law by spying on people in the United States without a warrant and without congressional or judicial oversight" as simply "some Democrats." In fact, many prominent Republicans -- including Sen. Arlen Specter (R-PA), Sen. Lindsey Graham (R-SC), and others -- have sharply disagreed with the administration's legal justifications for the warrantless domestic surveillance program and have criticized the administration for flouting the Foreign Intelligence Surveillance Act (FISA).

In addition, a January 5 report by the nonpartisan Congressional Research Service concluded that "the Administration's legal justification, as presented in the [December 22] summary analysis from the [Justice Department's] Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests."

Media Matters for America has previously documented Republicans and conservatives who have criticized or raised questions about the surveillance program, which is administered by the National Security Agency (NSA). Some more recent examples of Republicans and conservatives who have disagreed with or criticized the administration's legal justification for the program:

  • Graham, at a February 6 Senate Judiciary Committee hearing inquiring into the program with Attorney General Alberto R. Gonzales:

GRAHAM: Now, can I get to the FISA statute in two minutes here? And Mr. -- I hope we do have another round, because this is very important. I'm not here to accuse anyone of breaking the law; I want to create law that will help people fighting the war know what they can and can't do.

The FISA statute, if you look at the legislative language, they made a conscious decision back in 1978 to resolve this two-lane debate. There's two lanes you can go down as commander in chief. You can act with the Congress and you can have inherent authority as commander in chief. The FISA statute said basically this is the exclusive means to conduct foreign surveillance where American citizens are involved, and the Congress, seems to me, gave you a one- lane highway, not a two-lane highway. They took the inherent-authority argument, they thought about it, they debated it, and they passed a statute, if you look at the legislative language, saying this shall be the exclusive means. And it's different than 1401.

So I guess what I'm saying, Mr. Attorney General, if I buy our argument about FISA, I can't think of a reason you wouldn't have the ability, if you chose to, to set aside the statute on torture if you believed it impeded the war effort.

  • Specter, on the February 5 broadcast of NBC's Meet the Press:

TIM RUSSERT (host): The administration says that they didn't need to, that they already had authority from Congress when, back in October 2002, Congress voted an authorization to go to war against Iraq, and this is part of that war.

SPECTER: I believe that contention is very strained and unrealistic. The authorization for the use of force doesn't say anything about electronic surveillance, issue was never raised with the Congress. And there is a specific statute on the books, the Foreign Intelligence Surveillance Act, which says flatly that you can't undertake that kind of surveillance without a court order.

[...]

RUSSERT: When President Carter signed the Foreign Intelligence Surveillance Act into law, he had a presidential signing statement, and in that signing statement he said this, quote, "It clarifies the executive's authority to gather foreign intelligence by electric surveillance in the United States," suggesting that any inherent powers in Article 2 of the Constitution, or other -- other legislation, that this, this FISA law, was central and now would be controlling. Do you agree with that?

SPECTER: Well, I think that it's a very powerful statement when the president -- Carter at the time -- signed it, and said that that was the way electronic surveillance ought to be conducted, and only with a warrant. And that was a presidential concession as to who had the authority. Congress exercised it by passing the law, and the President submitted to it.

Now, there is an involved question here, Tim, which we're going to get into in some depth, as to whether the president's powers under Article 2, his inherent powers, supercede a statute. If a statute is inconsistent with the Constitution, the Constitution governs and the constitutional powers predominate. But here you have the president signing on and saying this is it, and that's why I've been so skeptical of the program, because it is in flat violation of the Foreign Intelligence Surveillance Act, but that's not the end of the discussion. There's a lot more to follow, and we won't be able to cover it all here this evening -- today, this morning, but we're going to have a hearing tomorrow and some more hearings after that because of the importance of this issue and because of its complexity and depth.

  • Sen. Chuck Hagel (R-NE), on the January 29 broadcast of ABC's This Week:

HAGEL: I don't believe from what I've heard -- but I'm going to give the administration an opportunity to explain it -- that he [President Bush] has the authority now to do what he's doing. Now, maybe he can convince me otherwise, but. that's OK, not yet. But that's OK. If he needs more authority, he just can't unilaterally decide that that 1978 law is out of date and he will be the guardian of America and he will violate that law. He needs to come back, work with us, work with the courts if he has to and we will do what we need to do to protect the civil liberties of this country and the national security of this country.

  • Curtis A. Bradley, a law professor at Duke University and former counselor on international law in the Legal Adviser's Office of the State Department, in a February 2 letter he signed along with 13 other law professors, disputed the administration's legal justifications as detailed in a January 19 "white paper." The law professors' response concluded that:

In sum, we remain as unpersuaded by the DOJ's 42-page attempt to find authority for the NSA spying program as we were of its initial five-page version. The DOJ's more extended discussion only reaffirms our initial conclusion [in a previous January 9 letter], because it makes clear that to find this program statutorily authorized would require rewriting not only clear and specific federal legislation, but major aspects of constitutional doctrine. Accordingly, we continue to believe that the administration has failed to offer any plausible legal justification for the NSA program.

As Stuart Benjamin, another law professor at Duke University, wrote on the weblog The Volokh Conspiracy, Bradley's signature on the letter appears to show that even proponents of expansive executive power believe the president has gone too far in the NSA case:

Second, and more obviously significant, is the fact that Curt Bradley, along with Jack Goldsmith, has written articles that have (to oversimplify matters greatly) articulated A) a broader vision of executive authority than most other academics would adopt, and B) a particularly broad construction of the September 18, 2001 Authorization for Use of Military Force statute on which the Administration attempts to rely. Jack Goldsmith probably feels constrained from joining the debate (given that he was at OLC [Justice Department's Office of Legal Counsel] for some of the period in question), but Bradley's joining of the letter criticizing the government's position seems quite significant. Bradley and Goldsmith considered the AUMF at great length and put forward a quite expansive interpretation of it. If Bradley nonetheless doesn't think that it provides a legal justification for the Administration's wiretapping, that tells us something -- and a good bit more than the fact that he's not on the political left.

Goldsmith, as a February 6 article in Newsweek noted, headed the OLC from October 2003 to around June 2004. The Newsweek article reported, "Within the executive branch, including the Pentagon and CIA, the OLC acts as a kind of mini Supreme Court. Its carefully worded opinions are regarded as binding precedent -- final say on what the president and all his agencies can and cannot legally do."

From the February 10 Washington Post article, titled "Cheney says NSA spying should be an election issue":

Its unclear whether the GOP strategy will work, however.

In a new Associated Press poll, about half of those surveyed favored the wiretap program. In the same poll last month, 56 percent opposed it. White House officials privately argue that President Bush's greatest political strength is the same one that helped Republicans in the last two elections: fighting terrorism.

In recent weeks, Bush has shifted his public focus away from Iraq and trained it on winning public support for the program. Some Democrats argue that Bush is breaking the law by spying on people in the United States without a warrant and without congressional or judicial oversight. Bush contends that the Constitution and the 2001 congressional war resolution give him the authority to take such steps to track down terrorism suspects.

"Some in Washington are yielding to the temptation to downplay the threat and to back away from the business at hand," Cheney said. "That mind-set may be comforting, but it is dangerous."

We've changed our commenting system to Disqus.
Instructions for signing up and claiming your comment history are located here.
Updated rules for commenting are here.