Arguing that the 1978 Foreign Intelligence Surveillance Act (FISA) is unconstitutional and should be abolished, a February 9 Wall Street Journal editorial used a variety of false and misleading statements to attack FISA and again defend the Bush administration's warrantless domestic surveillance program.

False claim: Attorney general testified that FISA's probable cause standard is too strict, would impede anti-terror activity

According to the Journal editorial:

FISA warrants apply to people, and are supposed to require “probable cause” that the subject is an agent of a foreign power. But as [Attorney General] Mr. [Alberto R.] Gonzales and Deputy National Intelligence Director Michael Hayden explained Monday, in fast-moving anti-terror operations it's often impossible to know if someone on the U.S. end of an al Qaeda phone call is actually an “agent.” That means the government must operate on a different “reasonable basis” standard.

The Journal was apparently referring to Hayden's February 5 interview on Fox Broadcasting Co.'s Fox News Sunday (which the Journal wrongly reported as having taken place on February 6), as well as Gonzales' February 6 testimony before the Senate Judiciary Committee. However, contrary to the Journal's claim that Gonzales and Hayden distringuished FISA's “probable cause” standard from the “reasonable basis” standard applied by the NSA in determining whether cause exists to undertake surveillance in a particular case, they portrayed the two standards as equivalent. As the Washington Post reported on February 9, the administration has contradicted itself repeatedly in explaining the threshold for conducting surveillance:

Shortly after the warrantless eavesdropping program began, then-NSA Director Michael V. Hayden and Ashcroft made clear in private meetings that the president wanted to detect possible terrorist activity before another attack. They also made clear that, in such a broad hunt for suspicious patterns and activities, the government could never meet the FISA court's probable-cause requirement, government officials said.

So it confused the FISA court judges when, in their recent public defense of the program, Hayden and Attorney General Alberto R. Gonzales insisted that NSA analysts do not listen to calls unless they have a reasonable belief that someone with a known link to terrorism is on one end of the call. At a hearing Monday, Gonzales told the Senate Judiciary Committee that the “reasonable belief” standard is merely the “probable cause” standard by another name.

As Media Matters for America noted at the time, when Hayden claimed on Fox News Sunday that the National Security Agency (NSA) warrantless surveillance program must have evidence in the same “probable cause range” that FISA requires to obtain a warrant seemingly, he appeared to contradict a statement he made on January 23, in which he admitted that the program's “reasonable basis” standard is “a bit softer than it is for a FISA warrant,” and acknowledged that the program had adopted a “lower standard” than required under FISA.

False claim: FISA “impeded” pre-9-11 intelligence gathering

According to the Journal:

We already know FISA impeded intelligence gathering before 9/11. It was the reason FBI agents decided not to tap the computer of alleged 20th hijacker Zacarias Moussaoui. And it contributed to the NSA's decision not to listen to foreign calls to actual hijacker Khalid al-Midhar, despite knowing that an al Qaeda associate by that name was in the country. The NSA feared being accused of “domestic spying.”

As Media Matters has previously noted, a 2003 bipartisan report of the Senate Judiciary Committee found that the FBI's evidence against Moussaoui was sufficient, but the FBI personnel who handled the warrant application “failed miserably” in their efforts to convince FBI attorneys they had met the threshold for establishing probable cause that Moussaoui was an “agent of a foreign power,” and therefore subject to surveillance pursuant to FISA. The report, compiled by Sens. Patrick Leahy (D-VT), Charles Grassley (R-IA), and Arlen Specter (R-PA), examined in detail the FBI's handling of the Moussaoui FISA application, and determined that the FBI agent in charge of the application provided the attorneys with a “truncated” version of the evidence against Moussaoui and failed to search for additional “information relevant to the application.” Moreover, the report found that both the agent in charge and the FBI attorneys had employed an “unnecessarily high standard” for probable cause -- one that exceeded the legal requirements set out by FISA.

Regarding hijacker Khalid al-Mihdhar, the Journal's claim that FISA “contributed” to the NSA's decision not to monitor al-Mihdhar's international communications is likely based on the 9-11 Commission report, which found that “the NSA did not seek FISA Court warrants to collect communications between individuals in the United States and foreign countries, because it believed that this was an FBI role,” and because it “did not want to be viewed as targeting persons in the United States and possibly violating laws that governed NSA's collection of foreign intelligence.” However, the available evidence suggests that the Journal's argument is misleading at best. Though the 9-11 Commission did find that the NSA limited its wire intercepts partly because of FISA guidelines, it also determined that intelligence and law enforcement agencies had sufficient evidence to conduct an investigation into al-Mihdhar -- without wiretapping his international communications. As Media Matters documented, the 9-11 Commission report indicated that law enforcement agencies could have conducted an investigation into al-Mihdhar based on the available intelligence, but confusion among law enforcement and intelligence agencies regarding the sharing of information prevented any such investigation from occurring. According to the report, criminal investigators “could have conducted a search using all available information” related to al-Mihdhar because the NSA, which the 9-11 Commission suggests had already obtained information regarding al-Mihdhar's financial and travel records, “had approved the passage of its information to the criminal agent” in the criminal case involving the October 2000 bombing of the USS Cole.

Misleading argument: Past presidents and the courts agreed that executive power supercedes FISA

According to the editorial:

Passed in the wake of the infamous Church hearings on the CIA, FISA is an artifact of post-Vietnam and post-Watergate hostility to executive power. But even as Jimmy Carter signed it for political reasons, his own Attorney General declared that it didn't supercede executive powers under Article I of the Constitution. Every President since has agreed with that view, and no court has contradicted it.

This argument is a red herring. Of course no law passed by Congress would supercede the Constitution, the supreme law of the land, so it stands to reason that the courts and prior presidents would hold this position. The real question, which the Journal ignored, is where the scope of the president's constitutional authority to spy on Americans ends and where Fourth Amendment protections against unreasonable searches -- which Congress passed FISA to help guarantee -- begin. As Media Matters has noted, a January 5 Congressional Research Service (CRS) report found that no court has, as of yet, addressed the legality of the conduct that the Bush administration reportedly is engaging in, and that the Bush administration's legal justification for the program “conflicts with existing law and hinges on weak legal arguments,” according to a January 7 Washington Post article's description of the report. *

Misleading argument: The Bush administration ensures the NSA program is legal

According to the Journal:

Far from being some rogue operation, the Bush Administration has taken enormous pains to make sure the NSA wiretaps are both legal and limited. The program is monitored by lawyers, reauthorized every 45 days by the President and has been discussed with both Congress and the FISA court itself.

In asserting the legality of the program, Journal ignored the program's complete lack of meaningful oversight to date. As noted above, the congressional briefings were severely limited, incomplete, and possibly illegal. The Washington Post reported on February 9 the two judges on the FISA court who were briefed, Colleen Kollar-Kotelly (the current presiding judge) and Royce C. Lamberth (her predecessor) -- the only two judges to be briefed, according to the Post, contrary to the Journal's suggestion that all 11 district court judges on the FISA court were briefed -- “expressed concern to senior officials that the president's program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional.”

For the Journal to claim that the NSA program is legal because the Bush administration says it is legal ignores the heated dissent within the Justice Department itself over the program's legality, as well as the challenges to the program raised by legal scholars from across the ideological spectrum and lawmakers from both parties (including at least 11 of the 18 senators on the Judiciary Committee). The February 9 Washington Post article cited above also noted that James A. Baker, counsel for intelligence policy in the Justice Department's Office of Intelligence Policy and Review, “shared” Kollar-Kotelly's and Lamberth's reservations about the program. According to the Post:

Lamberth and Kollar-Kotelly derived significant comfort from the trust they had in Baker, the government's liaison to the FISA court. He was a stickler-for-rules career lawyer steeped in foreign intelligence law, and had served as deputy director of the office before becoming the chief in 2001.

Baker also had privately expressed hesitation to his bosses about whether the domestic spying program conflicted with the FISA law, a government official said. Justice higher-ups viewed him as suspect, but they also recognized that he had the judges' confidence and kept him in the pivotal position of obtaining warrants to spy on possible terrorists.

Also, in a 2002 statement, Baker questioned the constitutionality of the DeWine bill proposing to lower FISA's probable-cause standards where the government sought to intercept communications of non-U.S. persons. According to a January 26 Washington Post report:

During Senate debate over DeWine's amendment in July 2002, James A. Baker, the Justice Department's counsel for intelligence policy, said in a statement that the Bush administration did not support the proposal “because the proposed change raises both significant legal and practical issues.”

Baker said it was “not clear cut” whether the proposal would “pass constitutional muster,” and “we could potentially put at risk ongoing investigations and prosecutions” if the amendment was later struck down by the courts. He also said Justice had been using FISA aggressively and played down the notion that the probable cause standard was too high.

Additionally, as Media Matters noted, former deputy attorney general James B. Comey, objected strenuously to the program and refused to reauthorize it in 2002 while serving as acting attorney general. Comey's refusal reportedly prompted White House chief of staff Andrew H. Card and then-White House counsel Gonzales to visit former Attorney General John Ashcroft in the hospital to seek his authorization. Moreover, as Newsweek reported in its February 6 edition, Comey and other members of the Bush administration that did question the domestic surveillance program (and other expansions of executive authority to conduct the “war on terror”) were “ostracized” and “denied promotions” and ultimately “left for more comfortable climes.”

* This item originally attributed the phrase “conflicts with existing law and hinges on weak legal arguments” to the January 5 Congressional Research Service report. In fact, this text appears in The Washington Post's January 7 analysis of the report but not in the report itself. The relevant quote from the CRS report is as follows: “Given such uncertainty, the Administration's legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests.” We regret the error.