In a December 21 Chicago Tribune op-ed, John Schmidt, former associate attorney general under President Clinton, argued that President Bush's decision to authorize domestic surveillance without pursuing court orders “is consistent with court decisions and with the positions of the Justice Department under prior presidents.” In defense of his argument, however, Schmidt falsely claimed that Jamie Gorelick, as deputy attorney general under Clinton, testified that the president has the authority to “go beyond” the terms of the Foreign Intelligence Surveillance Act (FISA). Schmidt also offered a number of empty and irrelevant arguments in defense of Bush.

Scmidt's op-ed has been cited by various media conservatives as a defense of Bush's actions. National Review White House correspondent Byron York excerpted Schmidt's op-ed in a December 21 entry on National Review Online's weblog, The Corner, titled “READ THIS IMPORTANT ARTICLE.” On the December 21 edition of Fox News' Special Report with Brit Hume, Fox News chief Washington correspondent Jim Angle reported: “But yet another former official in the Clinton Justice Department wrote in the Chicago Tribune today that President Bush's actions are consistent with a number of court decisions as well as the position of the Justice Department under several prior presidents.”

After The New York Times reported on December 16 that Bush authorized the National Security Agency to “eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying,” Bush publicly acknowledged the existence of the warrantless surveillance program and the fact that he had reauthorized it more than 30 times since 2001.

Schmidt's claim about Gorelick testimony is false

FISA, passed in 1978, requires that the Foreign Intelligence Surveillance Court authorize any domestic surveillance. In his Tribune op-ed, Schmidt wrote: “Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms.” As evidence, he quoted Gorelick's 1994 testimony before the Senate Intelligence Committee, in which she said: "[T]he Department of Justice believes, and the case law supports, that the president has the inherent authority to conduct warrantless physical searches for foreign intelligence purposes." But as Media Matters for America noted, physical searches were not governed by FISA at the time Gorelick made that statement. So her argument was not that the president could go beyond FISA, as Schmidt wrote, but that FISA did not then apply to physical searches. FISA was amended in 1995 to encompass physical searches. Moreover, Gorelick at the time stated her support for legislation requiring FISA warrants for physical searches.

Schmidt obscured NSA program's “targeting” to defend Bush

Schmidt went on to write:

FISA contains a provision making it illegal to “engage in electronic surveillance under color of law except as authorized by statute.” The term “electronic surveillance” is defined to exclude interception outside the U.S., as done by the NSA, unless there is interception of a communication “sent by or intended to be received by a particular, known United States person” (a U.S. citizen or permanent resident) and the communication is intercepted by “intentionally targeting that United States person.” The cryptic descriptions of the NSA program leave unclear whether it involves targeting of identified U.S. citizens. If the surveillance is based upon other kinds of evidence, it would fall outside what a FISA court could authorize and also outside the act's prohibition on electronic surveillance.

Schmidt's assertion that it is “unclear” whether the NSA surveillance is specifically targeting citizens ignores Bush's own characterization of his actions in authorizing the domestic spying. In a December 19 press conference, Bush said the calls being monitored under the NSA program “are from outside the country to in the country, or vice versa.” He made no distinction between “a United States person,” and someone in the country who lacks legal immigration status. If Bush administration officials could say that only undocumented immigrants were targeted, that would likely be their first line of defense. Schmidt used the administration's “cryptic descriptions of the NSA program” in Bush's defense, when in fact the point that their descriptions have been “cryptic” merely highlights the administration's efforts to claim -- without specificity -- its legal authority to engage in these actions. Moreover, Schmidt ignored the provision within FISA (50 USC 1802) that specifically addresses electronic surveillance without a warrant, which requires the attorney general to certify in writing and under oath that “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.” The administration has thus far not produced such certification from Attorney General Alberto R. Gonzales, and Bush's characterization of the program suggests that such certification would be impossible to make.

Schmidt's assertion also ignores specific news accounts indicating that the NSA program targeted at least one legalized alien. The December 16 New York Times article reported that "[s]everal officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches." As Schmidt noted, the FISA definition of a “United States person” includes naturalized citizens, so warrantless surveillance of him would apparently not fall under FISA's exclusion, and would therefore be prohibited.

Schmidt defended Bush with a red herring

Schmidt then wrote: “But even if the NSA activity is 'electronic surveillance' [as set out and governed by FISA] and the Sept. 11 resolution* is not 'statutory authorization' within the meaning of FISA, the act still cannot, in the words of the 2002 Court of Review decision, 'encroach upon the president's constitutional power.' " Schmidt was quoting a ruling by the Foreign Intelligence Surveillance Court of Review, which stated that FISA could not encroach on the president's “authority to conduct warrantless searches to obtain foreign intelligence information.” However, Schmidt's assertion is meaningless. Of course a law passed in 1978 would not trump the Constitution -- the supreme law of the land. The question is whether Bush, as president, has the constitutional authority to authorize warrantless surveillance of U.S. citizens and legalized aliens, notwithstanding FISA's restrictions. Contrary to Schmidt's suggestion, the case he cited does not address that question.

Schmidt accepted Bush's assertions about scope of NSA program, despite past inconsistent statements and despite lack of judicial oversight

Schmidt continued:

Should we be afraid of this inherent presidential power? Of course. If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense. The danger is that surveillance will not be used solely for that narrow and extraordinary purpose.

But we cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by Sept.11. I do not believe the Constitution allows Congress to take away from the president the inherent authority to act in response to a foreign attack. That inherent power is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history, could well need again.

Here, Schmidt suggested that the eavesdropping program has not already expanded beyond the administration's stated “narrow and extraordinary purpose.” But how could Schmidt know this? Many observers have noted that the president's April 2004 statement (in which he said: “Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so”) appears to have been flatly false. Gonzales stated the supposed boundaries of the program during a December 19 press conference, claiming that the eavesdropping is limited to “communication[s] where the other end of the call is outside the United States and where we believe that either the American citizen or the person outside the United States is somehow affiliated with Al Qaeda.” But there has been no judicial review or any substantive congressional oversight of the program. Indeed, The New York Times reported on December 21 that the program “has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil.” According to the Times:

Eavesdropping on communications between two people who are both inside the United States is prohibited under Mr. Bush's order allowing some domestic surveillance.

But in at least one instance, someone using an international cellphone was thought to be outside the United States when in fact both people in the conversation were in the country. Officials, who spoke on condition of anonymity because the program remains classified, would not discuss the number of accidental intercepts, but the total is thought to represent a very small fraction of the total number of wiretaps that Mr. Bush has authorized without getting warrants. In all, officials say the program has been used to eavesdrop on as many as 500 people at any one time, with the total number of people reaching perhaps into the thousands in the last three years.

* Joint Resolution 23, which 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.”