NY Times misrepresented GOP domestic spying proposal as "reinforc[ing]" FISA court's authority
SUMMARY: The New York Times reported that the recent agreement between the White House and Republican senators concerning the Bush administration's warrantless domestic surveillance program "would reinforce the authority of the Foreign Intelligence Surveillance Court." In fact, the reported agreement, if it is introduced as legislation, would codify the program's status outside the reach of the court.
A March 8 New York Times article by staff writers David D. Kirkpatrick and Scott Shane reported that the recent agreement between the White House and Republican members of the Senate Intelligence Committee concerning the Bush administration's warrantless domestic surveillance program "would reinforce the authority of the Foreign Intelligence Surveillance Court," which is often referred to as the FISA court. But far from reinforcing what many say should be the FISA court's authority over the program, the reported agreement, if it is introduced as legislation, would codify the program's status outside the reach of the court.
The Foreign Intelligence Surveillance Act (FISA), as passed by Congress in 1978, requires a warrant from the FISA court to conduct domestic surveillance for foreign intelligence purposes and allows warrantless surveillance for up to 72 hours under exigent circumstances. Shortly after the September 11, 2001, terrorist attacks, President Bush authorized the National Security Agency (NSA) to bypass the court, and the agency has since reportedly intercepted the communications of U.S. residents in apparent violation of the law. President Bush claims that he derives authority to circumvent FISA from two sources: the Constitution and the Authorization for Use of Military Force (AUMF) passed by Congress in 2001. Since the program's public disclosure, Democratic lawmakers -- along with numerous Republicans -- have contested this legal argument.
On March 7, Republican members of the Senate Intelligence Committee announced that they had reached an agreement with the White House on legislation that would allow the warrantless domestic surveillance program to continue under the law. As detailed by Sen. Mike DeWine (R-OH) at a press conference that day, the proposed measure would allow the NSA to conduct warrantless eavesdropping for up to 45 days without a FISA warrant. If the administration seeks to conduct this surveillance for a longer period, they would be able to either request a warrant from the FISA court or go before a newly formed, seven-member Senate subcommittee for approval. From DeWine's press conference:
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.
What this does is it provides for a case-by-case examination and oversight by the United States Congress, through its Intelligence Committee, of what the executive branch is doing.
The second part of this bill is, we provide for very vigorous oversight through the Intelligence Committee. We set up a statutory authority to do this through the subcommittee of both the Senate committee and the House committee. We spell out in detail what that oversight will be. And really will bring it into the normal oversight of the Senate Intelligence Committee.
[...]
We think we have set up a mechanism that provides vigorous oversight through this committee, very detailed oversight, as I have already outlined. And we think also it involves the FISA court, it does involve the FISA court.
DeWine stated that, following the 45-day period, the administration must seek approval from the FISA court if it "has enough information to go for a FISA warrant." In this context, "enough information" clearly means enough evidence to satisfy FISA's probable cause standard. DeWine further stated that if "they cannot go to the FISA court to get a warrant" -- presumably because they cannot meet the probable cause standard -- they can alternatively explain to the subcommittee why the surveillance is nonetheless "in the national security interest." The Times article made no effort to explain how a law requiring that the administration go to the FISA court whenever possible -- if it has sufficient evidence to obtain a warrant -- but allowing the administration instead to go to the subcommittee for further authorization if it cannot meet FISA's standard of proof "would reinforce" the authority of the FISA court, as Kirkpatrick and Shane reported that it would:
The agreement would reinforce the authority of the Foreign Intelligence Surveillance Court, which was created in 1978 to issue special warrants for spying but was sidestepped by the administration. The measure would require the administration to seek a warrant from the court whenever possible.
If the administration elects not to do so after 45 days, the attorney general must certify that the surveillance is necessary to protect the country and explain to the subcommittee why the administration has not sought a warrant. The attorney general would be required to give an update to the subcommittee every 45 days.
Blogger and attorney Glenn Greenwald had a very different take on whether the agreement strengthens the FISA court: "What the legislation does, on its face, is replace FISA judges with Republican Senators in approving the government's eavesdropping activities," Greenwald wrote in a March 8 post.
In their March 9 Times article on the agreement, Kirpatrick and Shane cited legal experts' complaints that the resulting legislation would "give legislative sanction" for long-term unwarranted domestic surveillance. They further noted that the 72 hours of warrantless surveillance allowed under FISA -- a restriction that the Bush administration apparently decided did not apply to the NSA program -- would be extended to 45 days and possibly longer under the proposed GOP measure:
In an emergency, the existing FISA statute permits the government to eavesdrop for 72 hours before getting a warrant, and for 15 days after a declaration of war. The Republican proposal would permit eavesdropping with no warrant for 45-day periods, with no limit on how many times they could be renewed.
But Kirpatrick and Shane did not note, much less correct or offer no further explanation for, their previous assertion that the proposed legislation "would reinforce the authority" of the FISA court.
You are a constant source of the truth in a sea of Republican Propaganda and Faux News lies. The honesty and integrity of the democrats will prevail in 2006; partly thanks to you. We can win if we remain left of center and unafraid.
Isn't it great how those hijackers "reinforced" the World Trade Center?
Imagine if NYT would have reported the WTC as being "reinforced." This is how ridiculous Kirkpatrick and Shane are sounding in their column.
Another punch in the Constitution's face courtesy of the Bush administration. A law doesn't suit his needs? Ignore it or circumvent it, call it quaint, that was 1978, this is today. Well, what about tomorrow? The Constitution wasn't written so the whim of one or a few could usurp the rights of the masses when it's convenient. The survival of the founding document surpasses Bush's desire to weave up more FAKE safety blankets in which to coddle the beguiled husk heads who voted him in, to the detriment of the nation for the next 25 + years.
Glenn's blog keeps up with this issue daily, here's a nugget from today:
[link to glenngreenwald.blogspot.com]
"UPDATE: The New York Times editorial page is one of the very few journalistic corners which understands the true magnitude of this scandal, and today [see hyper link to NYT on Glenn's blog] published an excellent editorial which included this:
"The Senate Judiciary Committee is still looking into the wiretapping. That committee should have plenty of incentive to go forward — its chairman, Senator Arlen Specter, was righteously angry when he received a letter in which Attorney General Alberto Gonzales implied that there was more warrantless spying we don't know about. Mr. Gonzales won't even say that Mr. Bush understands it is blatantly illegal to spy on communications within the United States without a warrant. Nevertheless, there's not much cause for hope: Mr. Specter has a sad habit of bowing to the right wing when the chips are down.
There are moments when leaders simply have to take a stand. It seems to us that one of them is when Americans are in danger of the kind of unchecked surveillance that they thought had died with J. Edgar Hoover, Watergate and spying on Vietnam protesters and civil rights leaders."
Save some anger in the tank. You'll need it for when Arlen Specter decides that he's not that angry after all and calls off the hearings in light of the newfound cooperation which has arisen between the distinguished friends on both sides of the aisle. "
(Glenn has harsh words for Sen. Rockefeller, the new cooperator)
has an interesting blog to read with some provovative legal beagles posting, but it is pretty much hard to find a blogger that has been more consistantly wrong on all aspects of this story than this guy. From the legal aspects, to the predictions of the votes in the senate, to the activist efforts, Glenn has scored a goose egg all the way around on this controversy.
Right, it's obvious that Glenn's detailed analysis as a Constitutional attorney can't possibly match the vague and unsubstantiated arguments regarding inherent power that you have spewn out any number of times here.
You can't possibly refute the posts on Glenn's blog. You simply claim he's "wrong" because it goes against your beloved leader.
you don't read his blog.
He predicted the republicans would cave and Olympia Snow and Hagel would vote with the democrats. WRONG
He ran a campaign in Nebraska to get Hagel to vote Glenn's way. FAILED
He claims he is a conservative that is being mislabeled a liberal because he disagrees with Bush on the NSA issue. YEAH, LIKE I BELIEVE THAT.
Glenn is a litgator in first amendment, civil rights, security lawyer NOT a specialist in constitutional law.
He has been dead wrong on virtually every prediction and side he chooses to champion in his blog, but obviously you don't read it, or you would know that.
...I have it bookmarked.
"He predicted the republicans would cave and Olympia Snow and Hagel would vote with the democrats. WRONG"
Cave? No, Snow and Hagel were already on record as being greatly concerned about the NSA program. It wasn't a prediction that they would "cave" to Democratic pressure, they have simply shown how they have caved to White House pressure. It wasn't a baseless prediction, Snow's and Hagel's comments are on the record. How can you read his blog and not know that?
"He ran a campaign in Nebraska to get Hagel to vote Glenn's way. FAILED"
So Hagel voted in line with the White House, how does that show Glenn is "wrong", as was your claim? Police fail to convince jumpers to stay alive everyday, does that mean they were "wrong"? Hagel does what he wants to do, it doesn't mean what his actions show integrity, consistency or wisdom.
"He claims he is a conservative that is being mislabeled a liberal because he disagrees with Bush on the NSA issue. YEAH, LIKE I BELIEVE THAT."
There is absolutely nothing regarding the criticism of Bush's actions that is exclusive to liberal or Democrat schools of thought. Nothing, and I dare you to argue otherwise. It's completely a Constitutional issue and relevant to the rule of law, which is something conservatives were supposed to value highly. Someone criticizes Bush, so you believe they must be liberal. I think that demonstrates your addled, binary-style mode of thinking rather well. Ironically, Glenn has addressed this phenomenon where anyone who opposes Bush is labeled a "liberal". As you've read his blog, you MUST have known that, yet you fall victim to the exact same fallacious thinking he wrote about!
"Glenn is a litgator in first amendment, civil rights, security lawyer NOT a specialist in constitutional law."
And yet, he has dealt with every argument you and other Bush apologists have spouted out in great detail. He has cited case law and inconsistencies within the Administration itself which you are completely incapable of countering. For someone who has made such simplistic, unsubstantiated arguments like you to question his work is nothing short of laughable.
"He has been dead wrong on virtually every prediction and side he chooses to champion in his blog..."
Really? So if Republicans vote in unison, it proves that those who would argue otherwise are "on the wrong side"? Just because he disagrees with your shallow defense of the President, he must be "wrong", even though he's addressed everything you've ever said and more? That was my point, as it was clearly over your head.
that the same issue of the NY Times has an op-ed piece with MMFA's view point.
What you are telling us is that if a counterpoint column is given in the editorials, that it makes it OK to lie in another column.
Secondly, saying that FISA is being "reinforced" is not an opinion that can be backed up in any way by the facts. There are no facts that would make anyone logically come to that conclusion. Please tell me how can the facts possibly be interpreted as FISA being reinforced.
In fact the column's next paragraph is complete evidence that FISA is having power taken away.
"If the administration elects not to do so after 45 days, the attorney general must certify that the surveillance is necessary to protect the country and explain to the subcommittee why the administration has not sought a warrant. The attorney general would be required to give an update to the subcommittee every 45 days."
FISA judges in two instances did not say that the FISA Act trumped the President's inherent powers. You are assuming that FISA could trump the president and the president had no authority to do warrantless searches using his own orders. That, imo, is incorrect. And apparently, I have plenty of FISA judges on my side.
First in the FISA Court of Review's 2002 Sealed Case decision when it said that FISA amplified the president's power and recognized the President's inherent powers.
Secondly, in the Washington Post article describing the problems between the Dept. of Justice and the FISA judges, the judges again had the opportunity to rule against Bush.
"Yet the judges believed they did not have the authority to rule on the president's power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process."
[link to www.washingtonpost.com]
That is why Bush simply didn't ignore FISA, but didn't. According to the post article they only used the secret NSA Terrorist Surveillance Program on about 10 cases per year. Many judges figured that Bush would toss the entire FISA process, but he didn't.
That is why this new act emboldens the FISA process and maintains Bush's inherent powers in the perfect compromise, as I predicted on this board several months ago.
My one criticism is I don't think a committee of congree people have the training and capabilities to do a proper oversight job and I think there should be a variety of trained experts in surveillance,miltary, civil rights, technologies, and appropriate legal experts on the committee.
"Yet the judges believed they did not have the authority to rule on the president's power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process."
So what? Just because they can't rule on Presidential power doesn't mean they agree with him. I have a very difficult time believing that if they did rule against him you wouldn't claim that they were exceeding their boundaries.
"According to the post article they only used the secret NSA Terrorist Surveillance Program on about 10 cases per year."
Then that article is either misrepresenting it or you are confused. It has been estimated up to 5000 people have been eavesdropped on through the domestic spying program, and only 10 cases per year have been pursued for warrants based on the findings. In fact, that ratio is what makes it so highly questionable, as "probable cause" should yield a much more favorable "washout ratio".
"Many judges figured that Bush would toss the entire FISA process, but he didn't...That is why this new act emboldens the FISA process and maintains Bush's inherent powers in the perfect compromise, as I predicted on this board several months ago. "
Your explanation of how FISA is emboldened is that Bush didn't throw it out completely? Meanwhile, the administration can run whatever it likes, without FISA approval, as long as four Republicans in Congress say it's alright? You fail to explain how FISA is strenghened here!
"I think there should be a variety of trained experts in surveillance,miltary, civil rights, technologies, and appropriate legal experts on the committee."
Or how about judges? Wouldn't that be a novel idea?
Am I to understand that your explanation of "oversight" is the covering of the Republican incumbents arse???
Cowards of the Republican Congress & Senate still have not seen the extent of the “domestic surveillance program,” now named in our Republican newspeak as the “terrorist surveillance program,” have chose not to hold hearing in private or not, to fulfill their constitutional responsibilities of oversight.
The best answer so far from such heroic figures as Torturing A.G. Gonzalez or our new presumed Bubbling King & Bushwhacking Co-King (Bush/Cheney) is that our duly elected Congress and Senate cannot be trusted with the information.
Tell me; since when did a sitting President’s Administration presume to tell a Congress that it didn’t need to know, and they just sat and took it like a muted baby in a dirty diaper??
Tell me, if this Congress, or a newly elected Congress does not investigate the litany of lies, deceptions, and outright criminal behavior of this government, what hope is left for our future Democracy??
Tell me; if the President's re-election committee, say Karl Rove, had any access to this program during the 2004 election?? Do we really think that a guy who would sick an FBI buddy on an opponent, to serve Federal time for a made up crime in a SOS state race, could resist the secret surveillance of a Presidential opponent?
Are we so gullible as to believe this scenario is so far afoot of the reality? We have no Congressional oversight for the past 4 years of surveillance. We have no FISA court oversight.
They are operating completely independent of any check, or balance of power.
Happy Thoughts;
Dan Grady
Jay Rockefeller is here.
He is going to ask 450 questions today.
Excellently written item, thank you J.K. and MMFA.
The second paragraph alone, as a synopsis of the issue leading up to the citation in this item of the New York Times piece on the proposed creation of the 'oversight' sub-committee; if the synopsis of that single paragraph were understood by the majority of the American People, then this issue would not be so widely misunderstood by those same People; then there would be little or no chance for the creation of that same sub-committee...
who shall have 'oversight' of an illegal circumvention of the FISA Court, four Republican Senators to three Democratic ones.
The Senate Intelligence Committee fails the People yet again.
With regard to the broader question of why this NSA program must circumvent the FISA Court:
AG Gonzales, in unsworn testimony before the Senate Judiciary Committee, seemed to imply that the reason for circumventing that lawfully created FISA Court was because there was a lot of paperwork involved in meeting the statutory requirements of authorization for a wiretap (I even recall him making some sort of hand gesture, to indicate how high was the stack of papers to deal with in the application), and he seemed also to indicate an inconvenient consumption of time in so applying (despite the Truth of the matter, as mentioned in the second paragraph of this item); and so because AG Gonzales in essence said that meeting the statutory requirements of the FISA Court was...
A PAIN IN THE ASS
...we have the creation of the 'oversight' subcommittee.
...A not so well written synopsis of that matter, as is the second paragraph of this item; but worth at least as much as the New York Times assertion that the proposed 'oversight' sub-committee...
"would reinforce the authority of the Foreign Intelligence Surveillance Court."
The New York Times fails the People yet again.
"The result was a proposal for close oversight by a new subcommittee. But what was most striking was how hard Republicans involved in the negotiations sought to make clear that the agreement was a concession by the White House, not a victory for Mr. Bush" Carl Hulse/nytimes.com 03/09/06
How does a educated, experienced reporter make such a weak effort?
The paragraph you excerpted, from The New York Times Carl Hulse's 'News Analysis' , claims that...
[the agreement (to create the 'oversight' sub-committee) was a concession by the White House]
BULL.
Nothing whatsoever was conceded. They continue to wiretap whomever they wish, and for whatever reasons they privately have, as they have been doing.
And the following paragraph makes a flat confirmation of that, in vague (Latin) talking point language...
["They wanted the status quo," said Senator Pat Roberts, Republican of Kansas and chairman of the Intelligence Committee.]
Which is what they got, from the Senate's Intelligence Committee. That 'status quo' statement just laid there flat in the article, in Hulse's 'Analysis'. A brighter, more 'analytic' sort, would have followed up Mr. Roberts flat statement by asking:
"Well, did they get it, the 'status quo'?"
But Hulse didn't have to ask the question, because he already knew the answer: yes, they got the 'status quo'. Hulse knew already because he's an 'analytic' guy.
And the headline of that article, appearing under the superheading of 'News Analysis', was...
Suddenly, a Rebellion in the G.O.P. on a Signature Issue
...that "signature issue" being National Security; and had not Republicans been involved at all in this proposal of a worthless 'oversight' sub-committee (whose function is to assure the 'status quo'); had it only been Democrats who'd been addressing this issue, Hulse's 'News Analysis' headline would have been...
No Surprise, Glum Democrats Obstructing National Security
The corporate media is going full tilt to cover for the malfeasance and unconstitutional power grab being untertaken by the Bush regime. This, coupled with Borger's misrepresentation can only be part of a systematic attempt to let Bush circumvent the intent of FISA. Can there be any doubt that Bush will abuse this power to spy on domestic opposition? His track record indicates he would.