CBS Evening News correspondent Jim Axelrod, reporting on CIA-director nominee Gen. Michael V. Hayden's forthcoming Senate nomination hearings, noted that "[t]he White House believes it wins any time there's a debate on electronic eavesdropping of terrorists and would welcome the grand stage for Hayden to defend" the Bush administration's warrantless domestic eavesdropping program. However, the debate over the surveillance program is not a question of whether the government can conduct "electronic eavesdropping of terrorists," but rather whether the government can conduct warrantless surveillance of residents of the United States in apparent violation of federal statute.
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On the May 8 broadcast of CBS Evening News, correspondent Jim Axelrod, reporting on CIA-director nominee Gen. Michael V. Hayden's forthcoming Senate nomination hearings, noted that "[t]he White House believes it wins any time there's a debate on electronic eavesdropping of terrorists, and would welcome the grand stage for Hayden to defend" the Bush administration's warrantless domestic eavesdropping program. Hayden, as former head of the National Security Administration (NSA), oversaw the program from 2001 to 2005. Axelrod, however, misstated what the debate over the surveillance program actually involves -- it is not a question of whether the government can conduct "electronic eavesdropping of terrorists," but rather whether the government can conduct warrantless surveillance of residents of the United States in apparent violation of federal statute. Also, Axelrod's characterization of the surveillance program as "electronic eavesdropping of terrorists" is contradicted by media reports that indicate the vast majority of communications intercepted by the program have had nothing to do with terrorism. Hayden, for his part, has provided a variety of misleading and contradictory statements on the NSA program, as Media Matters for America noted.
From the May 8 broadcast of CBS Evening News:
AXELROD: But the real debate may focus on Hayden's role overseeing the controversial electronic surveillance program inside the U.S. when he was NSA chief. He's been a vigorous defender.
HAYDEN [video clip]: This is not about intercepting conversations between people in the United States. This is hot pursuit of communications entering or leaving America, involving someone we believe is associated with Al Qaeda.
AXELROD: The White House believes it wins any time there's a debate on electronic eavesdropping of terrorists and would welcome the grand stage for Hayden to defend the program.
JOHN NEGROPONTE (national intelligence director) [video clip]: It would be fair to say that we expect quite a bit of questioning about this issue, but I believe that General Hayden will be very, very well-equipped and very well-prepared to answer any questions that might arise.
Contrary to Axelrod's claim, the debate over the NSA program is not over the "electronic eavesdropping of terrorists." There are few -- if any -- who contend that the United States should not engage in lawful surveillance of terrorists. The debate over the NSA program centers on the Bush administration's claim to have the legal authority to conduct such surveillance without going through the mechanisms set up by the 1978 Foreign Intelligence Surveillance Act (FISA), which states that the government must obtain a warrant from a special court in order to conduct domestic electronic surveillance for foreign intelligence purposes. President Bush and other administration officials have argued that Senate Joint Resolution 23 -- the Authorization for the Use of Military Force (AUMF) -- constitutes congressional authorization for the program. The AUMF 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." However, at a February 7 Senate Judiciary Committee hearing on the NSA program, Sen. Arlen Specter (R-PA), the committee chairman, told Attorney General Alberto R. Gonzales that the administration's claim that the AUMF provides legal justification "just defies logic and plain English."
From the February 7 hearing:
SPECTER: I don't think you can use the principle of avoiding a tough constitutional conflict by disagreeing with the plain words of the statute. Attorney General Gonzales, when members of Congress heard about your contention that the resolution authorizing the use of force amended the Foreign Intelligence Surveillance Act, there was general shock.
GONZALES: Sir, we've never asserted that FISA has been amended. We've always asserted that our interpretation of FISA, which contemplates another statute and we have that here in the authorization to use force, that those complement each other. This is not a situation where FISA has been overwritten or FISA has been amended. That's never been our position.
SPECTER: That just defies logic and plain English. FISA says squarely that you can't have electronic surveillance of any person without a warrant. And you are saying, when you tag on to this other statute, which isn't a penal provision, that those words in FISA are no longer applicable, that there's been a later statutory resolution by Congress which changes that. Attorney General Gonzales, I think we come back to the Jackson formula. And my judgment, with some experience in the field -- and I was starting to tell you how shocked people were when we found out you thought that what we had done on the resolution of September 14th authorized electronic surveillance, just nobody had that in the remotest concept.
And you may have the inherent authority. You may have the Article II authority, but I do not think that any fair, realistic reading of the September 14th resolution gives you the power to conduct electronic surveillance.
The nonpartisan Congressional Research Service (CRS) concluded in a January 5 report that the AUMF likely does not repeal FISA's requirement to obtain a warrant to conduct domestic electronic surveillance, as Media Matters noted. Also, the CRS report further noted that the Bush administration's legal justification "does not seem to be as well-grounded" as the administration claimed.
Axelrod's characterization of the program as "electronic eavesdropping on terrorists" is also not supported by various media accounts that have noted the program's low success rate. As Media Matters has noted, The Washington Post reported on February 5 that according to "current and former government officials and private-sector sources," intelligence officers used the program to eavesdrop "on thousands of Americans in overseas calls" but "dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat."
With regard to the legality of the warrantless eavesdropping program, Hayden has provided misleading congressional testimony, contradictory statements regarding the content of the program, and evasive responses to questions pertaining to the program's potential misuse, as Media Matters documented. Media Matters' coverage of the many falsehoods repeated in the media about the warrantless domestic surveillance program can be reviewed here.