CBS' Borger misrepresented Republican bill, claiming it "sets firm new limits" on warrantless spying
Research ››› ››› JEREMY SCHULMAN
CBS correspondent Gloria Borger misrepresented the terms of new legislation, reportedly agreed to by Senate Republicans and the White House, affecting the administration's domestic spying program. Borger reported that in order to conduct warrantless surveillance under the new legislation, the president would first be required to "explain why he needs to eavesdrop to a newly created congressional subcommittee." In fact, the legislation as reported would let the president authorize warrantless surveillance of Americans for up to 45 days without informing Congress.
On the March 7 broadcast of the CBS Evening News, contributor Gloria Borger apparently misrepresented the terms of new legislation, reportedly agreed to by Senate Republicans and the White House, that would establish some congressional oversight of the Bush administration's warrantless domestic surveillance program. Specifically, Borger reported that in order to conduct surveillance without a warrant under the new legislation, the president would first be required to "explain why he needs to eavesdrop to a newly created congressional subcommittee." In fact, the legislation as reported would let the president authorize warrantless surveillance of Americans for up to 45 days without informing Congress. More generally, Borger uncritically repeated the Republican claim that the legislation "sets firm new limits" on the administration's surveillance program. Viewers would not know it from Borger's report, but the claim that she reported as fact is sharply disputed by Senate Democrats, who said after the Senate Intelligence Committee vote effectively ratifying the agreement that it was little more than a capitulation to the White House.
In December 2005, The New York Times revealed that shortly after the September 11, 2001, terrorist attacks, President Bush began authorizing the National Security Agency to conduct warrantless surveillance of the international communications of U.S. residents -- an apparent violation of the Foreign Intelligence Surveillance Act (FISA). Under FISA, the administration is normally required to obtain a warrant from the FISA court in order to conduct such surveillance.
Voting on March 7 along party lines, the Senate Intelligence Committee rejected an investigation of the warrantless surveillance program, opting instead to embrace new legislation proposed by Sens. Olympia J. Snowe (R-ME), Mike DeWine (R-OH), Lindsey Graham (R-SC), and Chuck Hagel (R-NE). A March 8 press release issued by Snowe noted that she "joined with" the other three Republicans "in introducing" the bill, but as of this writing, it was not publicly available.
Without noting that Republicans had blocked an investigation into the program, Borger falsely reported on the Evening News that the Republican bill would require the administration to inform Congress before conducting warrantless surveillance:
BORGER: The Republican plan sets firm new limits. First, the president must explain why he needs to eavesdrop to a newly created congressional subcommittee and renew approval for those secret wiretaps every 45 days. If at any time there is probable cause that a suspect is an agent of a foreign power, the attorney general must get a warrant from a secret intelligence court to continue.
In fact, the so-called "Terrorist Surveillance Act of 2006" does not require the administration to notify Congress until 45 days after beginning surveillance on a U.S. resident. Snowe's release stated that "[t]he Act permits warrantless surveillance for up to 45 days if ... [t]he President determines that it is necessary to protect the United States against known terrorist groups that are planning or have engaged in attacks against the United States." The legislation simply requires that that the president give Congress a list of such terrorist groups -- not a list of individuals being monitored in the United States.
Other aspects of the proposed legislation also call into question Borger's assertion that it "sets firm new limits." Though Borger noted that the president must "renew approval for those secret wiretaps every 45 days," she did not make clear that under the act, it is apparently the administration -- not Congress -- that would reauthorize surveillance. Snowe's release noted that after 45 days, the attorney general would be required either to seek a warrant from the FISA court or to explain to Congress why the administration cannot seek a FISA warrant; but the release does not indicate that Congress would have the authority actually to reject continued surveillance:
If the Attorney General needs to continue surveillance without going to the FISA Court, he must certify that the surveillance is necessary to protect the United States and explain why continued surveillance will result in the acquisition of foreign intelligence information. The Attorney General must also provide a justification to Congress as to why he cannot take an individual case to FISA and keep Congress updated every 45 days on the status of any cases that have not yet been moved to FISA.
In a March 7 press conference, DeWine offered a similar description of the reauthorization process:
DeWINE: It provides that in an international call involving a designated terrorist organization, that there can be surveillance without a warrant. It provides that this program must be reviewed every 45 days. That after the 45-day period of time the executive branch must really do one of three things. The executive branch, if it has enough information to go for a FISA warrant, they must go for the FISA warrant. They can stop the surveillance. Or, the third thing that they can do is, if they do not want to do one of those two things, they must go to the United States Congress and explain why it is in the national security interest to continue that surveillance and why they cannot go to the FISA court to get a warrant.
When asked by a reporter "what leverage" Congress would have over administration decisions to continue warrantless surveillance after 45 days, DeWine responded, "[I]t's the same leverage we have in any other type of oversight." He noted that Congress would have the "power of the purse" and the power to "change legislation ... de-authorizing the program, altering the program." He did not say Congress would have the authority to approve or reject individual cases of surveillance.
As Borger noted, under the proposed legislation, "If at any time there is probable cause that a suspect is an agent of a foreign power, the attorney general must get a warrant from a secret intelligence [FISA] court to continue." This is true, but it does not appear -- as Borger's report suggested -- to constitute a "firm new limit." According to Snowe's press release, "A FISA Court warrant must be sought by the Attorney General for any individual target who meets the requirements for a FISA warrant." In other words, it appears that the administration must seek a warrant only when it has enough evidence to obtain one; Snowe's release suggests that the administration would not have to seek a warrant if it was unable to meet the evidentiary requirements for that warrant.
As The Washington Post reported in a March 8 article, the bill "would permit warrantless surveillance of calls between the United States and another country involving 'a designated terrorist organization' for 45 days, after which the government can stop the eavesdropping, seek a warrant, or explain to Congress why it wants to continue without a warrant."
In addition, Borger uncritically repeated Republican claims that the legislation represented a successful effort by Senate Republicans to place -- in Snowe's words -- "a constitutional check on presidential power." Borger told viewers that "[a]fter weeks of fighting over whether the administration overstepped its bounds by wiretapping Americans without court-ordered warrants, an influential group of Senate Republicans today told the White House, 'Enough.' "
But Borger's report -- which included footage of both Graham and Snowe touting the deal -- omitted Democratic arguments that the Senate Intelligence Committee's refusal to investigate the program represented little more than capitulation to White House demands.
By contrast, the Los Angeles Times reported on March 8 that following the Senate Intelligence Committee's votes, Sen. John D. Rockefeller IV (D-WV), the vice-chairman of the committee, complained about what he said was the Bush administration's control over the committee's vote against an investigation:
Emerging from a closed-door session in which Democrats lost two party-line votes, Sen. John D. Rockefeller IV (D-W.Va.), the vice chairman of the committee, said the outcome pushed the panel "further into irrelevancy" and reflected the influence of the Bush administration.
"The committee is, to put it bluntly, basically under the control of the White House," said Rockefeller, who had campaigned for a committee investigation and argued that all members of the panel ought to have full access to information on the program.
Moreover, in reporting that "some Republican senators threatened to join Democrats in calling for a public investigation into the wiretap program if the White House did not support congressional oversight," Borger ignored the fact that Hagel and Snowe -- members of the Senate Intelligence Committee who on March 7 voted against an investigation of the program -- had already called for an investigation and were apparently backing away from that demand. Both Hagel and Snowe signed a December 19, 2005, letter calling for a joint inquiry by the Intelligence and Judiciary committees:
We respectfully request that the Select Committee on Intelligence and the Committee on the Judiciary, which share jurisdiction and oversight of this issue, jointly undertake an inquiry into the facts and law surrounding these allegations.
In a press release announcing the letter, Snowe added:
Revelations that the U.S. government has conducted domestic electronic surveillance without express legal authority indeed warrants Congressional examination. I believe the Congress -- as a coequal branch of government -- must immediately and expeditiously review the use of this practice.
And in a January 29 appearance on ABC's This Week, Hagel said of the surveillance program: "So I would hope and we're going to get into these hearings as you know in the next few days, both in the Judiciary Committee and in the Intelligence Committee, that we can find some common ground."
From the March 7 broadcast of the CBS Evening News, with anchor Bob Schieffer:
SCHIEFFER: The White House got a message today with the bark off. Key Senate Republicans told administration officials that unless the White House agreed to some limits and more congressional oversight, they would push for a full-scale investigation into eavesdropping on Americans suspected of having ties to terrorists. Well, apparently the message got through for the first time. The White House did agree to do just that. Here's Gloria Borger.
BORGER: After weeks of fighting over whether the administration overstepped its bounds by wiretapping Americans without court-ordered warrants, an influential group of Senate Republicans today told the White House, "Enough."
GRAHAM [video clip]: I think the administration has looked at legitimate power of the -- of the executive during the time of war and taken it to extremes, to the point that where we'd lose constitutional balance.
BORGER: Under pressure, the White House today agreed to some congressional oversight as part of a plan that still allows the president, in a time of war, to order unwarranted wiretaps of suspected terrorists.
The Republican plan sets firm new limits. First, the president must explain why he needs to eavesdrop to a newly created congressional subcommittee and renew approval for those secret wiretaps every 45 days. If at any time there is probable cause that a suspect is an agent of a foreign power, the attorney general must get a warrant from a secret intelligence court to continue.
CBS News has learned that Republicans argued their case all the way up the chain of command, including the vice president's office, and some Republican senators threatened to join Democrats in calling for a public investigation into the wiretap program if the White House did not support congressional oversight.
SNOWE [video clip]: I think today we're setting a constitutional marker and also a constitutional check on presidential power. Because you can't allow the president to move forward in unfettered fashion.