Media ignored unanswered questions about Bush's new domestic surveillance program

››› ››› JOSH KALVEN

In their January 17 coverage of the Bush administration's "innovative" new approach to domestic surveillance, numerous television outlets called the development a "major change," a "sharp reversal," and an "about-face," but not one noted that the administration's explanations of its new approach have been highly ambiguous, leaving significant questions about the extent to which the administration is actually ceding authority to the courts.

Following Attorney General Alberto R. Gonzales' January 17 announcement detailing the administration's "innovative" new approach to domestic surveillance, numerous television news outlets -- including NBC, ABC, CBS, CNN, and Fox News -- characterized the policy shift as a capitulation to widespread criticism of the existing warrantless surveillance program. Some trumpeted this development as a "major change," a "sharp reversal," and an "about-face." But none of these reports noted that the administration's explanations of its new approach have been highly ambiguous, leaving significant questions about the extent to which the Bush administration is actually ceding authority to the courts.

Shortly after the September 11, 2001, terrorist attacks, President Bush authorized the National Security Agency (NSA) to intercept the international communications of U.S. persons without court approval, even though the Foreign Intelligence Surveillance Act (FISA) requires that the government obtain a warrant to engage in domestic surveillance for foreign intelligence purposes. Since The New York Times revealed the program in December 2005, the White House has repeatedly asserted that Bush possesses the inherent authority to conduct warrantless eavesdropping on U.S. soil, while Democrats, civil liberties advocates, some Republicans, and more recently, a U.S. District Court judge, have argued that the surveillance program is illegal.

In his January 17 letter to Sens. Patrick Leahy (D-VT) and Arlen Specter (R-PA), Gonzales suggested that the program had been abandoned and that future domestic surveillance for foreign intelligence purposes would be subject to some form of review by the FISA court. Gonzales described the Justice Department as having developed an "innovative" and "complex" approach to the FISA process but did not offer any further details:

I am writing to inform you that on January 10, 2007, a judge of the Foreign Intelligence Surveillance Court issued orders authorizing the Government to target for collection internal communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization. As a result of these orders, any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court.

In the spring of 2005 -- well before the first press account disclosing the existence of the Terrorist Surveillance Program -- the administration began exploring options for seeking such FISA Court approval. Any court authorization had to ensure that the Intelligence Community would have the speed and agility necessary to protect the Nation from al Qaeda -- the very speed and agility that was offered by the Terrorist Surveillance Program. These orders are innovative, they are complex, and it took considerable time and work for the Government to develop the approach that was proposed to the Court and for the Judge on the FISC to consider and approve these orders.

In a January 17 press briefing, several unnamed Justice Department officials were similarly vague. While they stated that the orders handed down by the FISA judge "are not some sort of advisory opinion ruling on the program as a whole," they declined to spell out exactly how the process had changed:

QUESTION: What has changed here? What has changed that allows you -- now allows the FISA court to approve this on whatever basis?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: I don't know that anything has changed. First of all, let me say that we continue to believe as we've always said and as we've explained at length that the President has the authority to authorize the terrorist surveillance program, that he has that authority under the authorization for the use of military force and under Article II of the Constitution. That's not changing.

These orders, however, are orders that have taken a long time to put together -- to work on. They're orders that take advantage of use -- of the use of the FISA statute and developments in the law. I can't really get into developments in the law before the FISA court. But it's a process that began nearly two years ago, and it's just now that the court has approved these orders.

QUESTION: This is Peter Tomlin. How is this different than going to the court for the warrants before 9/11, which you had the authority to do? I mean, what is different than just the regular statute?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, again, I'm not, I'm really not going to talk about the particulars of how these orders may differ from prior orders.

I will emphasize that the FISA court -- the judge of the FISA court who approved these orders, specifically found that they meet all the requirements of the FISA statute.

In a January 18 Salon.com article, blogger and attorney Glenn Greenwald noted that the administration has yet to provide any of the "details or mechanics" regarding the new "approach" to FISA:

[W]e still do not know the details or mechanics of how the administration's eavesdropping will be conducted in compliance with FISA. Has a general warrant been issued approving of the program itself? Have so-called anticipatory warrants been issued by the court to allow the administration in advance to eavesdrop whenever specifically defined circumstances arise? Or will the administration be required, on a case-by-case basis, to apply to the FISA court for permission to eavesdrop and be further required, as the statute contemplates, to make a probable-cause showing?

Greenwald went on to note that, no matter which of the above scenarios turns out to be true, the administration remains open to criticism:

If the administration has changed its eavesdropping program to some extent, but is still not fully complying with FISA, then nothing of significance has occurred because the administration is still violating the law. One cannot yet exclude that option. Gonzales' letter affirms, as one would expect, the administration's belief that it was legally entitled to violate this law. That means that it can violate it again at any future point, it can violate other laws under the same theories, and whatever other lawbreaking is already occurring as a result of those theories is not going to stop.

But if the administration is now complying fully and exclusively with FISA when eavesdropping, all of its prior claims that it could not do so and still fight terrorists are false.

But on January 17, in their coverage of Gonzales' letter, numerous news outlets failed to report on the open questions regarding this apparent shift and instead simply characterized the White House as having capitulated:

  • On ABC's World News, anchor Charles Gibson described it as a "major reversal" and, in discussing the news with ABC News White House correspondent Martha Raddatz, called it "a very abrupt about-face." "It sure is, Charlie," Raddatz responded. She later referred to the development as an "abrupt change."
  • On The CBS Evening News, anchor Katie Couric reported that "Bush is giving up what he's long insisted is a key weapon: his program of eavesdropping without a court order on the phone calls and emails of Americans suspected of communicating with terrorists." In his subsequent report, CBS News White House correspondent Jim Axelrod called the Department of Justice announcement an "about-face."
  • On NBC's Nightly News, anchor Brian Williams told viewers that the Bush administration had "reversed itself on one of the most controversial pieces of the president's anti-terror program."
  • On CNN's Situation Room, host Wolf Blitzer asserted: "[T]his does represent a major change. Earlier, they said they couldn't do this through the FISA system. Now, they're saying, 'Well, after all, I guess we can.' " Meanwhile, CNN White House correspondent Ed Henry described it as "an about-face no matter how you look at it."
  • On Fox News' Special Report, anchor Brit Hume reported: "The Bush administration today appeared to put an end to the long and sometimes noisy debate over its practice of conducting electronic surveillance of suspected terrorist communications into and out of the U.S. without warrants."

By contrast, on January 18, several major print outlets provided readers with greater context regarding the ambiguous nature of the announcement and the unanswered questions that remain:

  • The Los Angeles Times reported: "[I]t was not clear whether the secret tribunal, known as the FISA court after the Foreign Intelligence Surveillance Act that created it, had agreed to give the administration substantial latitude or whether major changes were made. ... Gonzales and other officials refused to divulge details of the orders that the FISA court adopted Jan. 10. A senior Justice Department official, speaking on condition of anonymity, acknowledged there had been "modifications" in the program."
  • The Washington Post reported: "[M]any details of the new approach remained unclear yesterday, because administration officials declined to describe specifically how the program will work. Officials would not say, for example, whether the administration will be required to seek a warrant for each person it wants to monitor or whether the FISA court has issued a broader set of orders to cover multiple cases. Authorities also would not say how many court orders are involved or which judge on the surveillance court had issued them."
  • The New York Times noted that "Justice Department officials would not describe whether the court had agreed to new procedures to streamline the process of issuing orders or accepted new standards to make it easier for the government to get approval to monitor suspect e-mail and phone communications." The Times went on to report, "[S]enior lawmakers said they were still uncertain Wednesday, even after the administration's announcement, about how the court would go about approving warrants, how targets would be identified, and whether that process would differ from the court's practices since 1978."

From the January 17 broadcast of ABC's World News with Charles Gibson:

GIBSON: There was a major reversal today by the Bush administration in the war on terrorism. Two years ago, you may recall, the administration maintained it had the right to spy on people in the United States without court approval. Today, however, the Justice Department said there will be no such surveillance of people in this country without court approval. Our White House correspondent, Martha Raddatz, is joining us. And, Martha, this does seem to be a very abrupt about-face.

RADDATZ: It sure is, Charlie. When the president's secret spying program was revealed in late 2005, you'll remember the president said he simply couldn't get warrants. There weren't time. It was a matter of national security or the terrorists would get ahead of the United States. Well, today, as you said, an abrupt change. This is Tony Snow, the White House spokesman. He said, "We are satisfied not only that it meets the conditions of national security, but in this case, also has the ancillary benefit of being able to deal with political objections." And, Charlie, I believe that is probably the key, political objections. We have a Democratic Congress now. Attorney General Alberto Gonzales is heading up to the Hill tomorrow, and he doesn't want the grilling to be quite as bad. And the White House wants this issue to be behind it.

From the January 17 broadcast of The CBS Evening News with Katie Couric:

COURIC: In the war on terror here at home, a surprising development today. President Bush is giving up what he's long insisted is a key weapon: his program of eavesdropping without a court order on the phone calls and emails of Americans suspected of communicating with terrorists. Let's go to Jim Axelrod at the White House.

Jim, the president said he needs it, but he's dropping it, so what's going on?

AXELROD: Well, Katie, this was a highly controversial program in which Americans suspected of ties to terrorism could have their phone calls and their emails monitored without a judge overseeing any request to do so. But the president said this was, quote, "one of the most critical and effective tools in the war on terror," and the administration spent more than a year arguing he had full legal authority to order the warrantless eavesdropping. But we should make the point, Katie, about this about-face, that the eavesdropping won't stop at all, it's just that the requests will have to now be monitored by a judge.

COURIC: And, Jim, why now?

AXELROD: Well, really, they've lost a court case last summer, but the bigger controlling principle here is that they have to learn -- the White House has to learn to deal with a Democratic-controlled Congress. Take tomorrow, for instance: Attorney General Alberto Gonzales goes to Capitol Hill, he testifies in front of the Senate Judiciary Committee, and the Senate Judiciary Committee is now controlled by Democrats highly critical of this program. If they hadn't pulled this U-turn, Gonzales would have been blistered tomorrow, Katie.

From the January 17 broadcast of NBC's Nightly News with Brian Williams:

WILLIAMS: Tonight, the Bush administration has reversed itself on one of the most controversial pieces of the president's anti-terror program. It involved listening in on the phone calls of U.S. citizens without a warrant. With us tonight, with more on this, NBC News justice correspondent Pete Williams.

Pete, walk us through what has changed and when.

PETE WILLIAMS: OK, Brian. Well, what has changed is that the administration has insisted for the past year that it did not need court approval to do this because it said the president had the wartime power to order these wiretaps on his own. Now the government is abandoning that approach and says it will, from now on, seek approval from a special federal intelligence court here in Washington. In fact, the Justice Department revealed today that it has already started doing that, at least twice in the past week, and it says the court approved those requests, to which the Justice Department considers an endorsement of the wiretapping. So, the National Security Agency can still listen in on the conversations of suspected Al Qaeda members, even if that includes phone calls involving U.S. citizens, as long as it gets the court's approval, Brian.

From the January 17 edition of CNN's The Situation Room:

BLITZER: And there seems to be a major change as far as the Bush administration is concerned on the warrantless wiretap program. As you know, for a long time, they resisted letting the Foreign Intelligence Surveillance Court be involved in overseeing these warrantless wiretaps. But today, there's been a major reversal.

HENRY: That's right. It's an about-face no matter how you look at it, in the president's policy.

White House spokesman Tony Snow tried to say, "Look, the Justice Department is fine with this; that appropriate tweaks have been made so that now they're fine with this independent body -- that Foreign Intelligence Surveillance Court -- to look at this and approve these individual warrants." But it's clearly a far cry from what the president was saying over and over just last year on the campaign trail about how FISA was outdated, how he needed special powers. Democrats now running Congress are saying -- who have been saying that this is either illegal, maybe even constitutional [sic], are saying it's long overdue.

And, in fact, tomorrow, the Democratic -- the new Senate Judiciary chairman, Patrick Leahy, was planning to grill Attorney General Alberto Gonzales on this.

But White House Spokesman Tony Snow insists the administration was not trying to pre-empt that.

SNOW [video clip]: It's the FISA court, which is the Foreign Intelligence Surveillance Court, which has done this. What you're doing is you're accusing that court of engaging in political activity to, what, bail out the Bush administration? I don't think so.

LEAHY [video clip]: They don't have to follow the law. They just step outside the law. They don't have to follow the checks and balances. But I'd say all Americans -- no matter what your political leanings might be -- all Americans ought to ask, "Why are they doing this? Why are they doing this?" Because it doesn't -- in the long run -- it does not protect us, not if we take away our liberties.

HENRY: Wolf, the bottom line is this points out that on both issues -- Iraq and the warrantless wiretapping -- the president, who for six years, as you were noting, basically had a free hand to conduct the war on terror, no longer has that, especially with Democrats running the Hill -- Wolf.

[...]

BLITZER: The other story that you reported on earlier -- this Bush administration decision to turn around its FISA court requirement for the domestic surveillance -- this does represent a major change. Earlier, they said they couldn't do this through the FISA system. Now, they're saying, "Well, after all, I guess we can."

From the January 17 edition of Fox News' Special Report with Brit Hume:

HUME: The Bush administration today appeared to put an end to the long and sometimes noisy debate over its practice of conducting electronic surveillance of suspected terrorist communications into and out of the U.S. without warrants. The Justice Department said it is placing the program under the supervision of a special independent court. Chief Washington correspondent Jim Angle reports.

[...]

ANGLE: The letters noted that, over the last two years, the FISA court has reduced the backlog by 35 percent for requests from intelligence agencies and by 65 percent for those from the FBI. And this new agreements appears, at least initially, to have taken some of the venom out of the political debate.

SENATE MAJORITY LEADER HARRY REID (D-NV): I'm glad that they're moving forward. I mean, they're just a little behind schedule. We've always been willing to work with the administration on this, because we want to get the bad guys just as bad -- just as much as they do.

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