Top 12 lies the GOP spin machine is using to handle wiretap constitutional cri

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" Zepp " <zepp

Fri, 23 Dec 2005 18:42:10 -0800

[Zepps_News] #Top 12 lies the GOP spin machine is using to

" handle " wiretap constitutional crisis

 

 

 

*Top 12 media myths and falsehoods on the Bush administration's spying

scandal *

 

http://mediamatters.org/items/200512240002

 

As /The New York Times/ first revealed

<http://mediamatters.org/rd?http://www.nytimes.com/2005/12/16/politics/16program\

..html?ei=5090 & en=e32072d786623ac1 & ex=1292389200 & partner=rssuserland & emc=rss & page\

wanted=print>

on December 16, President Bush issued a secret presidential order

shortly after the September 11, 2001, terrorist attacks that authorized

the National Security Agency (NSA) to eavesdrop on international phone

and email communications that originate from or are received within the

United States, and to do so without the court approval normally required

under the Foreign Intelligence Surveillance Act (FISA). Facing

increasing scrutiny, the Bush administration and its conservative allies

in the media have defended the secret spying operation with false and

misleading claims that have subsequently been reported without challenge

across the media. So, just in time for the holidays, /Media Matters for

America/ presents the top myths and falsehoods promoted by he media on

the Bush administration's spying scandal.

 

*1: Timeliness necessitated bypassing the FISA court*

 

Various media outlets have uncritically relayed

<http://mediamatters.org/items/200512200008> President Bush's claim that

the administration's warrantless domestic surveillance is justified

because " we must be able to act fast ... so we can prevent new

[terrorist] attacks. " But these reports have ignored emergency

provisions in the current law governing such surveillance -- FISA --

that allow the administration to apply to the Foreign Intelligence

Surveillance Court for a search warrant up to 72 hours /after/ the

government begins monitoring suspects' phone conversations. The

existence of this 72-hour window debunks the argument that the

administration had to bypass the law to avoid delay in obtaining a

warrant. The fact that the administration never retroactively sought a

warrant <http://mediamatters.org/items/200512190013#20051223> from the

FISA court for its surveillance activities suggests that it was not the

need to act quickly that prevented the administraion from complying with

the FISA statute, but, rather, the fear of being denied the warrant.

 

*2: Congress was adequately informed of -- and approved -- the

administration's actions*

 

Conservatives have sought to defend the secret spying operation by

falsely suggesting that the Bush administration adequately informed

Congress of its actions and that Congress raised no objections. For

example, on the December 19 broadcast of Westwood One's /The Radio

Factor,/ host Bill O'Reilly claimed that the NSA's domestic surveillance

" wasn't a secret program " because " the Bush administration did keep key

congressional people informed they were doing this. " The claim was also

featured in a December 21 press release

<http://mediamatters.org/rd?http://www.gop.com/News/Read.aspx?ID=6014>

by the Republican National Committee (RNC).

 

In fact, both Republicans and Democrats in Congress have said that the

administration likely did not inform them of the operation to the extent

required by the National Security Act of 1947

<http://mediamatters.org/rd?http://www.intelligence.gov/0-natsecact_1947.shtml>,

as amended in 2001. Members of both parties have also said that the

objections they did have were ignored by the administration and couldn't

be aired because the program's existence was highly classified.

 

As /The New York Times/ reported

<http://mediamatters.org/rd?http://www.nytimes.com/2005/12/21/politics/21intel.h\

tml?ei=5090 & en=ecb69f142833723e & ex=1292821200 & partner=rssuserland & emc=rss & pagewa\

nted=print>

on December 21, Rep. Peter Hoekstra (R-MI), former Sen. Bob Graham

(D-FL), Senate Intelligence Committee ranking member John D. Rockefeller

IV (D-WV), and Senate Democratic Leader Harry Reid (D-NV) have stated

that they did not receive written reports from the White House on the

surveillance operation, as required by the National Security Act:

 

The demand for written reports was added to the National Security

Act of 1947 by Congress in 2001, as part of an effort to compel the

executive branch to provide more specificity and clarity in its

briefings about continuing activities. President Bush signed the

measure into law on Dec. 28, 2001, but only after raising an

objection to the new provision, with the stipulation that he would

interpret it " in a manner consistent with the president's

constitutional authority " to withhold information for

national-security or foreign-policy reasons.

 

[...]

 

n interviews, Mr. Hoekstra, Mr. Graham and aides to Mr.

Rockefeller and Mr. Reid all said they understood that while the

briefings provided by [Vice President Dick] Cheney might have been

accompanied by charts, they did not constitute written reports. The

2001 addition to the law requires that such reports always be in

written form, and include a concise statement of facts and

explanation of an activity's significance.

Further, Rockefeller recently released a copy of a letter

<http://mediamatters.org/rd?http://www.washingtonpost.com/wp-dyn/content/article\

/2005/12/19/AR2005121901641_pf.html>

he wrote to Cheney on July 17, 2003, raising objections to the secret

surveillance operation. As the /Times/ reported

<http://mediamatters.org/rd?http://www.nytimes.com/2005/12/20/politics/20spy.htm\

l?ei=5090 & en=4478f86ff5527b51 & ex=1292734800 & partner=rssuserland & emc=rss & pagewant\

ed=print>

on December 20, Rockefeller said on December 19 that his concerns " were

never addressed, and I was prohibited from sharing my views with my

colleagues " because the briefings were classified. The December 21

/Times/ report

<http://mediamatters.org/rd?http://www.nytimes.com/2005/12/21/politics/21intel.h\

tml?ei=5090 & en=ecb69f142833723e & ex=1292821200 & partner=rssuserland & emc=rss & pagewa\

nted=print>

noted that House Democratic Leader Nancy Pelosi (D-CA) said she too sent

a ltter to the Bush administration objecting to the secret surveillance

operation, and that Graham alleged that he was never informed " that the

program would involve eavesdropping on American citizens. "

*3: Warrantless searches of Americans are legal under the 1978 Foreign

Intelligence Surveillance Act*

Conservatives such as nationally syndicated radio host Rush Limbaugh

<http://mediamatters.org/issues_topics/people/rushlimbaugh> and American

Cause president Bay Buchanan have defended the administration by falsely

claiming <http://mediamatters.org/items/200512210011> that the

administration's authorization of domestic surveillance by the NSA

without warrants is legal under FISA. In fact, FISA, which was enacted

in 1978, contains provisions that limit such surveillance to

communications " exclusively between foreign powers, " specifically

stating that the president may authorize electronic surveillance without

a court order only if there is " no substantial likelihood " that the

communications of " a United States person " -- a U.S. citizen or anyone

else legally in the United States -- will be intercepted. Such

provisions do not allow for the Bush administration's authorization of

domestic surveillance of communications between persons inside the

United States and parties outside the cuntry.

FISA also allows the president and the attorney general to conduct

surveillance without a court order for the purpose of gathering " foreign

intelligence information " for " a period " no more than 15 days " following

a declaration of war by the Congress. " This provision does not permit

Bush's conduct either, as he acknowledged

<http://mediamatters.org/rd?http://www.whitehouse.gov/news/releases/2005/12/2005\

1219-2.html>

that he had reauthorized the program more than 30 times since 2001, and

said that the program is " reviewed approximately every 45 days. "

*4: Clinton, Carter also authorized warrantless searches of U.S. citizens*

Another tactic conservatives have used to defend the Bush administration

has been to claim that it is not unusual for a president to authorize

secret surveillance of U.S. citizens without a court order, asserting

that Democratic presidents have also done so. For example, on the

December 21 edition

<http://mediamatters.org/rd?http://www.foxnews.com/story/0,2933,179435,00.html>

of Fox News's /Special Report,/ host Brit Hume

<http://mediamatters.org/issues_topics/people/brithume> claimed that

former presidents Jimmy Carter and Bill Clinton issued executive orders

" to perform wiretaps and searches of American citizens without a warrant. "

But as the ThinkProgress weblog noted

<http://mediamatters.org/rd?http://thinkprogress.org/2005/12/20/drudge-fact-chec\

k/>

on December 20, executive orders on the topic by Clinton and Carter were

merely explaining the rules established by FISA, which do not allow for

warrantless searches on " United States persons. " Subsequent reports by

NBC chief foreign affairs correspondent Andrea Mitchell

<http://mediamatters.org/rd?http://www.msnbc.msn.com/id/10565905/> and

/The Washington Post

<http://mediamatters.org/rd?http://www.washingtonpost.com/wp-dyn/content/article\

/2005/12/21/AR2005122102253_pf.html>/

also debunked the conservative talking point while noting that the claim

was highlighted in the December 21 RNC press release

<http://mediamatters.org/rd?http://www.gop.com/News/Read.aspx?ID=6014>.

From ThinkProgress, which documented how internet gossip Matt Drudge

selectively cited

<http://mediamatters.org/rd?http://www.drudgereport.com/flash8.htm> from

the Clinton and Carter executive orders to falsely suggest they

authorized secret surveillance of U.S. citizens without court-obtained

warrants:

What Drudge says

<http://mediamatters.org/rd?http://www.drudgereport.com/flash8.htm>:

Clinton, February 9, 1995: " The Attorney General is authorized

to approve physical searches, without a court order "

What Clinton actually signed

<http://mediamatters.org/rd?http://www.fas.org/irp/offdocs/eo/eo-12949.htm>:

Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of

the [Foreign Intelligence Surveillance] Act, the Attorney

General is authorized to approve physical searches, without a

court order, to acquire foreign intelligence information for

periods of up to one year, **if the Attorney General makes the

certifications required by that section.**

That section requires the Attorney General to certify is the search

will not involve " the premises, information, material, or property

of a United States person.

<http://mediamatters.org/rd?http://www4.law.cornell.edu/uscode/html/uscode50/usc\

_sec_50_00001822----000-.html> "

That means U.S. citizens or anyone inside of the United States.

The entire controversy about Bush's program is that, for the first

time ever, allows warrantless surveillance of U.S. citizens and

other people inside of the United States. Clinton's 1995 executive

order did not authorize that.

Drudge pulls the same trick with Carter.

What Drudge says

<http://mediamatters.org/rd?http://www.drudgereport.com/flash8.htm>:

Jimmy Carter Signed Executive Order on May 23, 1979: " Attorney

General is authorized to approve electronic surveillance to

acquire foreign intelligence information without a court order. "

What Carter's executive order

<http://mediamatters.org/rd?http://www.fas.org/irp/offdocs/eo12139.htm>

actually says:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence

Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney

General is authorized to approve electronic surveillance to

acquire foreign intelligence information without a court order,

**but only if the Attorney General makes the certifications

required by that Section.**

What the Attorney General has to certify under that section is that

the surveillance will not contain " the contents of any communication

to which a United States person is a party.

<http://mediamatters.org/rd?http://www4.law.cornell.edu/uscode/html/uscode50/usc\

_sec_50_00001802----000-.html> "

So again, no U.S. persons are involved.

*5: Only Democrats are concerned about the Bush administration's secret

surveillance*

As part of a larger problem of imprecise reporting, a number of media

reports have falsely suggested </items/200512200012#20051223> that the

debate over the Bush administration's secret surveillance of domestic

communications is purely a partisan dispute between Democrats and

Republicans. For example, on the December 22 broadcast of NBC's /Today,

Newsweek/ chief political correspondent Howard Fineman said: " [W]hile

the Bill of Rights is something we all cherish, I think the Democrats

politically need to be careful, because the president's going to argue,

as he already is, that post-9-11, strong surveillance measures are

required. "

In fact, several prominent Republicans have expressed concern that the

Bush administration's actions might violate the law or otherwise be

objectionable. On December 18, Sen. Lindsey O. Graham (R-SC) said that

" I don't know of any legal basis to go around " the requirement that the

White House formally apply to the FISA court for a warrant to engage in

domestic surveillance, while Sen. John McCain (R-AZ) said it is a

" legitimate question " to ask why " the president chose not to use FISA. "

After Attorney General Alberto R. Gonzales cited executive authority in

defending the legality of the administration's actions, Sen. Arlen

Specter (R-PA) -- who is in charge of organizing an investigation into

the issue -- responded that he was " skeptical of the attorney general's

citation of authority. "

*6: Debate is between those supporting civil liberties and those seeking

to prevent terrorism*

Many media figures have created a false dichotomy by framing the debate

over the Bush administration's actions as one between those who support

protecting civil liberties and those who favor protecting America from

another deadly terrorist attack. For example, NBC host Katie Couric

claimed <http://mediamatters.org/items/200512190005> the debate amounted

to " legal analysts and constitutional scholars versus Americans, who say

civil liberties are important, but we don't want another September 11, "

while NBC's Mitchell wondered

<http://mediamatters.org/items/200512210004> whether Americans should be

more concerned about " [a] terror attack or someone going into their hard

drive and intercepting their emails. "

Such statements set up exactly the false debate put forth by Cheney and

Bush to defend the administration's actions, as Mitchell subsequently

noted on the December 21 edition

<http://mediamatters.org/rd?http://www.msnbc.msn.com/id/10565905/> of

MSNBC's /Hardball with Chris Matthews:/

MITCHELL: [T]hey set up successfully, the White House, this premise

of you're either for security and protecting the American people

post-9-11 or you're worried about surveillance. This either-or

proposition, when a lot of people say that's a false choice.

*7: Bin Laden phone leak demonstrates how leak of spy operation could

damage national security*

Several media outlets have uncritically cited a 1998 /Washington Times/

report on Osama bin Laden as an example of how leaking information about

the Bush administration's domestic spying operation could harm national

security. The media have falsely suggested that the /Washington Times/

report revealed that the United States was monitoring bin Laden's

conversations on a satellite phone and that bin Laden quickly ceased

using the phone after the report surfaced. In fact, the article only

noted that bin Laden was using a satellite phone, not that the U.S. was

monitoring it; according to a December 22 report

<http://mediamatters.org/rd?http://www.washingtonpost.com/wp-dyn/content/article\

/2005/12/21/AR2005122101994_pf.html>

by /The Washington Post,/ bin Laden apparently had stopped using the

phone by the time any newspaper reported that the U.S. had been

monitoring his conversations. Furher, the /Post/ noted that another

report on bin Laden's phone -- that relied on the Taliban as its source

-- preceded the /Washington Times/ article by nearly two years, while

another report predating the /Times/ article relied on bin Laden himself.

One example of media misrepresenting the bin Laden incident occurred on

the December 17 edition

<http://mediamatters.org/rd?http://transcripts.cnn.com/TRANSCRIPTS/0512/17/cst.0\

1.html>

of /CNN Live Saturday,/ when correspondent Brian Todd reported:

TODD: We asked one expert how important it is for the NSA and its

methods to be kept so secret. He cited one breach as an example, the

damage done when it was made public that intelligence agencies were

monitoring Osama bin Laden's cell phone calls.

In a December 19 press conference

<http://mediamatters.org/rd?http://www.cnn.com/2005/POLITICS/12/19/bush.transcri\

pt/>,

Bush also highlighted the purported bin Laden leak as an example of why

leaking information about the domestic spying operation was a " shameful

act " that is " helping the enemy " :

QUESTION: Thank you, sir. Are you going to order a leaks

investigation into the disclosure of the NSA surveillance program?

[...]

BUSH: My personal opinion is it was a shameful act, for someone to

disclose this very important program in time of war.

The fact that we're discussing this program is helping the enemy.

[...]

BUSH: Let me give you an example about my concerns about letting the

enemy know what may or may not be happening.

In the late 1990s, our government was following Osama bin Laden

because he was using a certain type of telephone. And then the fact

that we were following Osama bin Laden because he was using a

certain type of telephone made it into the press as the result of a

leak.

And guess what happened. Osama bin Laden changed his behavior. He

began to change how he communicated.

But as the December 22 /Post/ report

<http://mediamatters.org/rd?http://www.washingtonpost.com/wp-dyn/content/article\

/2005/12/21/AR2005122101994_pf.html>

documented, the August 21, 1998, /Washington Times/ article in question

" never said that the United States was listening in on bin Laden " ; the

article merely reported that bin Laden " keeps in touch with the world

via computers and satellite phones. " The /Post/ also noted that the

/Washington Times/ report was not the first article to note bin Laden's

use of a satellite phone: A December 16, 1996, /Time/ magazine report

cited the Taliban in reporting that bin Laden " uses satellite phones to

contact fellow Islamic militants in Europe, the Middle East and Africa. "

And the day before the /Times/ article, CNN terrorism analyst Peter

Bergen cited a 1997 interview he conducted with bin Laden to report that

bin Laden " communicates by satellite phone. " Finally, the /Post/ noted

that it was not until " after bin Ladenapparently stopped using his

phone " that the /Los Angeles Times/ first reported on September 7, 1998,

that the U.S. had been monitoring his phone conversations. As a

follow-up /Post/ article

<http://mediamatters.org/rd?http://www.washingtonpost.com/wp-dyn/content/article\

/2005/12/22/AR2005122201800_pf.html>

on December 23 noted, bin Laden stopped using the phone " within days of

a cruise missile attack on his training camps in Afghanistan. "

The false claim that the /Washington Times/ article was responsible for

causing bin Laden to stop using the satellite phone apparently

originated in the 9-11 Commission report, which asserted

<http://mediamatters.org/rd?http://www.9-11commission.gov/report/911Report_Ch4.h\

tm>:

" Worst of all, al Qaeda's senior leadership had stopped using a

particular means of communication almost immediately after a leak to the

/Washington Times./ "

*8: Gorelick testimony proved Clinton asserted " the same authority " as

Bush*

In a December 20 article headlined " Clinton Claimed Authority to Order

No-Warrant Searches

<http://mediamatters.org/rd?http://www.nationalreview.com/york/york200512200946.\

asp>, "

/National Review/ White House correspondent Byron York drew attention to

then-Deputy Attorney General Jamie Gorelick's July 14, 1994, testimony

<http://mediamatters.org/rd?http://thinkprogress.org/gorelick-testimony/>

before the House Intelligence Committee, in which she stated that the

president has " inherent authority to conduct warrantless physical

searches. " While York's article did not explicitly draw a parallel

between the Clinton administration's 1994 policy regarding such searches

and the current Bush administration controversy regarding unwarranted

domestic surveillance, conservative media figures such as /National

Review/ editor Rich Lowry <http://mediamatters.org/items/200512210012>

and syndicated columnist Charles Krauthammer

<http://mediamatters.org/rd?http://www.washingtonpost.com/w-dyn/content/article/\

2005/12/22/AR2005122201102_pf.html>

have done just that.

But Gorelick's testimony does not prove

<http://mediamatters.org/items/200512210012> that the Clinton

administration believed it had the authority to bypass FISA regulations,

as the Bush administration has argued in the case of the NSA's domestic

wiretapping program.

Unlike electronic surveillance, the " physical searches " to which

Gorelick referred were not restricted by FISA at the time of her 1994

testimony. Therefore, by asserting the authority to conduct physical

searches for foreign intelligence purposes, the Clinton administration

was not asserting that it did not have to comply with FISA. In October

1994, Congress passed legislation -- with Clinton's support

<http://mediamatters.org/rd?http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/\

2001/10/06/MN183971.DTL>

-- to require FISA warrants for physical searches. Thereafter, the

Clinton administration never argued

<http://mediamatters.org/rd?http://thinkprogress.org/2005/12/20/the-gorelick-myt\

h/>

that any " inherent authority " pre-empted FISA. To the contrary, in

February 1995 Clinton issued an executive order

<http://mediamatters.org/rd?http://www.fas.org/irp/offdocs/eo/eo-12949.htm>

that implemented the new FISA requirements on physical searches.

By contrast, the Bush administration has argued that it has the

authority to authorize surveillance of domestic communications without

court orders, despite FISA's clear and longstanding restrictions on

warrantless electronic eavesdropping.

*9: Aldrich Ames investigation is example of Clinton administration

bypassing FISA regulations*

Some conservatives have specifically cited the joint CIA/FBI

investigation of Aldrich Ames, a CIA analyst ultimately convicted of

espionage, as an example of Clinton invoking executive authority to

overstep FISA by authorizing a physical search of a suspect without a

court order. For example, on the December 21 edition

<http://mediamatters.org/rd?http://transcripts.cnn.com/TRANSCRIPTS/0512/21/sitro\

om.01.html>

of CNN's /The Situation Room,/ Republican attorney Victoria Toensing

falsely claimed </items/200512220011#20051223> that the Clinton

administration did " carry out that authority " to bypass the FISA

requirements " when they went into Aldrich Ames's house without a warrant. "

But as with Gorelick's testimony, the Ames investigation took place

before the 1995 FISA amendment requiring warrants for physical searches.

In other words, in conducting these searches, the Clinton administration

did not bypass FISA because FISA did not address physical searches.

Further, there is ample evidence that the Clinton administration

complied with the FISA requirements that did exist on wiretapping: U.S.

District Court Judge Royce C. Lamberth, who previously served on the

FISA court, has noted

<http://mediamatters.org/rd?http://www.pbs.org/wgbh/pages/frontline/shows/sleepe\

r/tools/lamberth.html>

the " key role " the court played in the Ames case to " authorize physical

entries to plant eavesdropping devices " ; and former deputy assistant

attorney general Mark M. Richard established that " the Attorney General

was asked to sign as many as nine certifications to the FISA court in

support of applications for FISA surveillance " during the Ames

investigation.

*10: Clinton administration conducted domestic spying*

Conservative media figures have claimed that during the Clinton

administration, the NSA used a program known as Echelon to monitor the

domestic communications of United States citizens without a warrant.

While most have offered no evidence to support this assertion, NewsMax,

a right-wing news website, cited

<http://mediamatters.org/rd?http://www.newsmax.com/scripts/printer_friendly.pl?p\

age=http://www.newsmax.com/archives/ic/2005/12/18/221452.shtml>

a February 27, 2000, CBS News /60 Minutes/ report

<http://mediamatters.org/rd?http://cryptome.org/echelon-60min.htm> that

correspondent Steve Kroft

<http://mediamatters.org/rd?http://www.cbsnews.com/stories/2002/02/25/60minutes/\

main502014.shtml>

introduced by asserting: " If you made a phone call today or sent an

email to a friend, there's a good chance what you said or wrote was

captured and screened by the country's largest intelligence agency. The

top-secret Global Surveillance Network is called Echelon, and it's ru by

the National Security Agency. " NewsMax used the /60 Minutes/ segment to

call into question /The New York Times'/ December 16 report

<http://mediamatters.org/rd?http://www.nytimes.com/2005/12/16/politics/16program\

..html?ei=5090 & en=e32072d786623ac1 & ex=1292389200 & partner=rssuserland & emc=rss & page\

wanted=print>

that Bush's " decision to permit some eavesdropping inside the country

without court approval was a major shift in American

intelligence-gathering practices, particularly for the National Security

Agency, whose mission is to spy on communications abroad. "

On December 19, Limbaugh read the NewsMax article on his nationally

syndicated radio show. Limbaugh told listeners that Bush's surveillance

program " started in previous administrations. You've heard of the NSA

massive computer-gathering program called Echelon. /60 Minutes/ did a

story on this in February of 2000. Bill Clinton still in office. " The

Echelon claim has also been repeated by /Wall Street Journal/ columnist

John Fund

<http://mediamatters.org/rd?http://transcripts.cnn.com/TRANSCRIPTS/0512/19/ldt.0\

1.html>

and radio host G. Gordon Liddy

<http://mediamatters.org/rd?http://www.msnbc.msn.com/id/10548164/>.

The /60 Minutes/ report appears to have been based largely on anecdotal

evidence provided by a former Canadian intelligence agent and a former

intelligence employee who worked at Menwith Hill, the American spy

station in Great Britain, in 1979. In addition, the report contained

footage of an assertion by then-Rep. Bob Barr (R-GA) that " Project

Echelon engages in the interception of literally millions of

communications involving United States citizens. " But the report also

included comments from then-chairman of the House Permanent Select

Committee on Intelligence Rep. Porter Goss (R-FL), who, Kroft reported,

" still believes ... that the NSA does not eavesdrop on innocent American

citizens. " Kroft asked Goss: " [H]ow can you be sure that no one is

listening to those conversations? " Goss responded, " We do have methods

for that, and I am relatively sure that those procedures are working

very well. "

While Goss did not say in his /60 Minutes/ interview that the NSA does

not spy on the domestic communications of Americans without a warrant,

then-director of central intelligence George J. Tenet and then-National

Security Agency director Lt. Gen. Michael V. Hayden

<http://mediamatters.org/rd?http://www.nsa.gov/about/about00013.cfm>

said exactly that to Goss's committee less than two months later. As

ThinkProgress has noted

<http://mediamatters.org/rd?http://thinkprogress.org/2005/12/20/the-echelon-myth\

/>,

Tenet testified before the intelligence committee on April 12, 2000.

Denying allegations that Echelon was used to spy on Americans in the

United States without a warrant, Tenet stated: " We do not target their

conversations for collection in the United States unless a FISA warrant

has been obtained from the FISA court by the Justice Department. " In the

same hearing, Hayden testified: " If [an] American person is in the

United States of America, I must have a court order befre I initiate any

collection [of communications] against him or her. "

Hayden also denied the " urban myth " that the NSA " ask others to do on

our behalf that which we cannot do for ourselves. " This appears to have

been a response to the allegation -- noted by /60 Minutes/ -- that the

NSA was exchanging information with foreign intelligence services that

did monitor the domestic communications of Americans. Hayden stated: " By

executive order, it is illegal for us to ask others to do what we cannot

do ourselves, and we don't do it. "

Tenet and Hayden's congressional testimony leaves two possibilities:

Either they were not telling Congress the truth, or the claim that the

NSA used the Echelon program to monitor the domestic communications of

Americans is incorrect.

Hayden now serves as principal deputy director of national intelligence

and has vigorously defended Bush's warrantless domestic surveillance

program. At a December 19 press conference

<http://mediamatters.org/rd?http://www.dni.gov/release_letter_121905.html>,

he acknowledged that Bush's program goes beyond what is authorized under

FISA. Hayden described it as " a more -- I'll use the word 'aggressive'

program than would be traditionally available under FISA. "

*11: Moussaoui case proved that FISA probable-cause standard impedes

terrorism probes*

Some of the administration's supporters have attempted to defend the

domestic surveillance program by pointing to a purported situation where

the cumbersome FISA regulations prevented crucial intelligence

gathering. In a December 20 /Washington Post/ op-ed

<http://mediamatters.org/rd?http://www.washingtonpost.com/wp-dyn/content/article\

/2005/12/19/AR2005121901027.html>,

/Weekly Standard/ editor William Kristol and American Enterprise

Institute resident scholar Gary Schmitt cited the 2001 case of Zacarias

Moussaoui as evidence that the " difficulty with FISA is the standard it

imposes for obtaining a warrant aimed at " a domestic target. Kristol and

Schmitt claimed that the evidence the FBI had compiled against Moussaoui

did not " rise to the level of probable cause under FISA " :

Consider the case of Zacarias Moussaoui, the French Moroccan who

came to the FBI's attention before Sept. 11 because he had asked a

Minnesota flight school for lessons on how to steer an airliner, but

not on how to take off or land. Even with this report, and with

information from French intelligence that Moussaoui had been

associating with Chechen rebels, the Justice Department decided

there was not sufficient evidence to get a FISA warrant to allow the

inspection of his computer files. Had they opened his laptop,

investigators might have begun to unwrap the Sept. 11 plot. But

strange behavior and merely associating with dubious characters

don't rise to the level of probable cause under FISA.

But contrary to Kristol and Schmitt's argument that the probable-cause

standard established by FISA was too high in this case, a 2003 Senate

Judiciary Committee report

<http://mediamatters.org/rd?http://www.fas.org/irp/congress/2003_rpt/fisa.pdf>

found that the FBI's evidence against Moussaoui was, in fact,

sufficient. The report instead asserted

<http://mediamatters.org/rd?http://www.fas.org/irp/congress/2003_rpt/fisa.pdf#pa\

ge=19>

that FBI personnel who handled the warrant application " failed

miserably " in their efforts to convince FBI attorneys that the threshold

for establishing probable cause that Moussaoui was an " agent of a

foreign power " (and therefore subject to surveillance pursuant to FISA)

had been met .

The bipartisan 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, which was delivered to FBI

headquarters by the Minneapolis field office, handled by a supervisory

special agent (SSA) there, and ultimately rejected as insufficient by

FBI attorneys. The senators determined that the SSA in charge of the

application provided

<http://mediamatters.org/rd?http://www.fas.org/irp/congress/2003_rpt/fisa.pdf#pa\

ge=19>

the attorneys with a " truncated " version of the evidence compiled by the

Minneapolis agents and failed

<http://mediamatters.org/rd?http://www.fas.org/irp/congress/2003_rpt/fisa.pdf#pa\

ge=20>

to search for additional " information relevant to the application. "

Moreover, the report found that both the SSA and the attorneys had

employed

<http://mediamatters.org/rd?http://www.fas.org/irp/congress/2003_rpt/fisa.pdf#pa\

ge=26>

an " unnecessarily high standar " for probable cause -- one that exceeded

the legal requirements set out by FISA:

In our view, the FBI applied too cramped an interpretation of

probable cause and " agent of a foreign power " in making the

determination of whether Moussaoui was an agent of a foreign power.

FBI Headquarters personnel in charge of reviewing this application

focused too much on establishing a nexus between Moussaoui and a

" recognized " group, which is not legally required. Without going

into the actual evidence in the Moussaoui case, *there appears to

have been sufficient evidence in the possession of the FBI which

satisfied the FISA requirements for the Moussaoui application.*

Despite this report's having established that the FBI's misunderstanding

of the FISA requirements resulted in the rejection of the Moussaoui

application, a December 23 /New York Times/ article

<http://mediamatters.org/rd?http://www.nytimes.com/2005/12/23/politics/23court.h\

tml?ex=1292994000 & en=7a7b1ad577c9bf3b & ei=5090 & partner=rssuserland & emc=rss>

reported without challenge the FBI's argument that FISA's " cumbersome

submission requirements " were to blame:

Some agents complained that the FISA court's cumbersome submission

requirements and insistence on strict adherence to the law had

contributed to the impression that the court itself was an obstacle

to aggressive investigation of terror cases. As an example, these

agents suggested F.B.I. lawyers did not seek a FISA warrant in the

case of Zacarias Moussaoui, who was arrested shortly before the 2001

attacks, in part because they believed the court would reject it.

*12: A 2002 FISA review court opinion makes clear that Bush acted legally*

Recently, conservative media figures have misleadingly cited a 2002

opinion

<http://mediamatters.org/rd?http://www.fas.org/irp/agency/doj/fisa/fiscr111802.h\

tml>

by the Foreign Intelligence Surveillance Court of Review (FISCR) to

claim that the president could authorize warrantless domestic electronic

surveillance despite FISA's restrictions. They have pointed to the

court's reiteration of the president's inherent constitutional authority

to conduct foreign intelligence surveillance without a warrant, which

FISA cannot encroach upon. Therefore, they argue, Bush could authorize

NSA's warrantless monitoring of " U.S. persons, " regardless of FISA's

restrictions.

But, as /Media Matters/ documented

<http://mediamatters.org/items/200512220007#20051223>, this argument is

a red herring. Their citation of the decision to support the contention

that Congress cannot encroach upon the president's constitutional

authority ignores constitutional limits on that authority. Of course a

law passed in 1978 would not trump the Constitution -- the supreme law

of the land. The question is the scope of that presidential authority

and whether it extends to acts that would violate the provisions of FISA

protecting U.S. persons from excessive government intrusion. Contrary to

these media figures' suggestions, the 2002 FISCR opinion

<http://mediamatters.org/rd?http://www.fas.org/irp/agency/doj/fisa/fiscr111802.h\

tml>

does not address that question.

Regardless, media figures have asserted that the FISCR opinion supports

the contention that Bush is not bound by FISA.

Most prominent among these has been /National Review/ White House

correspondent Byron York, who in a post on the National Review Online's

weblog, The Corner, titled " READ THIS IMPORTANT ARTICLE

<http://mediamatters.org/rd?http://corner.nationalreview.com/05_12_18_corner-arc\

hive.asp#085260>, "

promoted a /Chicago Tribune/ op-ed

<http://mediamatters.org/rd?http://www.chicagotribune.com/news/opinion/chi-05122\

10142dec21,0,3553632.story?coll=chi-newsopinioncommentary-hed>

by John Schmidt, an associate attorney general under Clinton, supporting

the legality of the administration's surveillance program. Schmidt wrote:

Four federal courts of appeal subsequently faced the issue squarely

and held that the president has inherent authority to authorize

wiretapping for foreign intelligence purposes without judicial

warrant. In the most recent judicial statement on the issue, the

Foreign Intelligence Surveillance Court of Review, composed of three

federal appellate court judges, said in 2002 that " All the ...

courts to have decided the issue held that the president did have

inherent authority to conduct warrantless searches to obtain foreign

intelligence ... We take for granted that the president does have

that authority. "

[...]

But as the 2002 Court of Review noted, if the president has inherent

authority to conduct warrantless searches, " FISA could not encroach

on the president's constitutional power. "

The Drudge Report website also cited Schmidt's /Tribune/ op-ed with a

link

<http://mediamatters.org/rd?http://www.drudgereportarchives.com/data/2005/12/21/\

20051221_175400.htm>

captioned " Associate attorney general under Clinton: President had legal

authority to OK taps ... "

Similarly, a December 20 /Wall Street Journal/ editorial

<http://mediamatters.org/rd?http://www.opinionjournal.com/editorial/feature.html\

?id=110007703>

asserted:

*FISA established a process by which certain wiretaps in the context

of the Cold War could be approved, not a limit on what wiretaps

could ever be allowed.*

*The courts have been explicit on this point*, most recently in In

/Re: Sealed Case/, the 2002 opinion by the special panel of

appellate judges established to hear FISA appeals. In its per curiam

opinion, the court noted that in a previous FISA case (U.S. v.

Truong*), a federal " court, as did /all the other courts to have

decided the issue/* [our emphasis]*, held that the President did

have inherent authority to conduct warrantless searches to obtain

foreign intelligence information. " * And further that, " *We take for

granted that the President does have that authority and, assuming

that is so, FISA could not encroach on the President's

constitutional power. " *

Fox News chief Washington correspondent Jim Angle made a similar claim

on the December 20 edition of Fox News' /Special Report with Brit Hume/,

stating, " In 2002, [FISA's] own court of review upheld the president's

powers and pointed to an appeals court decision, noting that it, as did

all other courts to have decided the issue, held that the president did

have the inherent authority to conduct warrantless searches to obtain

foreign intelligence information. "

Others who have repeated this claim in the media include Bradford

Berenson, a former associate White House counsel, who made the assertion

on the December 21 broadcast

<http://mediamatters.org/rd?http://www.pbs.org/newshour/bb/fedagencies/july-dec0\

5/nsa_12-21.html>

of PBS' /The NewsHour with Jim Lehrer/. Berenson worked

<http://mediamatters.org/rd?http://www.sidley.com/news/pub.asp?PubID=17153282003\

>

in the Bush White House from 2001 to 2003, and after the September 11

attacks " played a significant role in the executive branch's

counterterrorism response. "

--

" 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 "

-George W. Bush, April 20, 2004

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