12 MYTHS ABOUT SPYING !!!

Thanks to MediaMatters we have 12 myths about Bush's eavesdropping.

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

Summary: Media Matters presents the top 12 myths and falsehoods
promoted by the media on President Bush's spying scandal stemming from the
recent revelation in The New York Times that he authorized the National Security
Agency (NSA) to eavesdrop on domestic communications without the required
approval of the Foreign Intelligence Surveillance court.
As The New York
Times first revealed
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 the media on the Bush
administration's spying scandal.

1: Timeliness necessitated bypassing the
FISA court
Various media outlets have uncritically relayed
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 from the FISA court for its surveillance
activities suggests that it was not the need to act quickly that prevented the
administration 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 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, 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
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.
[...]
[I]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 he wrote to Cheney on July 17, 2003, raising objections to the
secret surveillance operation. As the Times reported
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
noted that House Democratic Leader Nancy Pelosi (D-CA) said she too sent a
letter 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 and American Cause president Bay Buchanan have defended the
administration by falsely
claiming 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 country.
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
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
of Fox News's Special Report, host Brit Hume
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
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 and The
Washington Post also debunked the conservative talking point while noting
that the claim was highlighted in the December 21 RNC press
release.
From ThinkProgress, which documented how internet gossip Matt
Drudge selectively
cited 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:
Clinton, February 9, 1995: "The Attorney General is authorized to
approve physical searches, without a court order"
What Clinton actually
signed:
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."
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:
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 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."
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 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
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 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
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
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.
Further, 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
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, 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
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 Laden apparently 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
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:
"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," National Review White House
correspondent Byron York drew attention to then-Deputy Attorney General Jamie
Gorelick's July 14, 1994, 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 and syndicated
columnist Charles
Krauthammer have done just that.
But Gorelick's testimony does not prove 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 -- to require FISA warrants for physical searches. Thereafter, the
Clinton administration never
argued that any "inherent authority" pre-empted FISA. To the contrary, in
February 1995 Clinton issued an executive
order 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
of CNN's The Situation Room, Republican attorney Victoria Toensing falsely
claimed 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
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
a February 27, 2000, CBS News 60 Minutes report
that correspondent Steve
Kroft 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 run by the National Security
Agency." NewsMax used the 60 Minutes segment to call into question The New York
Times' December 16 report
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 and radio host G.
Gordon Liddy.
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 said exactly that to Goss's committee less than two months later.
As ThinkProgress has noted,
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 before I initiate any collection [of communications] against him or
her."
Hayden also denied the "urban myth" that the NSA "ask[s] 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, 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,
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
found that the FBI's evidence against Moussaoui was, in fact, sufficient. The
report instead asserted
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
the attorneys with a "truncated" version of the evidence compiled by the
Minneapolis agents and failed
to search for additional "information relevant to the application." Moreover,
the report found that both the SSA and the attorneys had employed
an "unnecessarily high standard" 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
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
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, 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
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," promoted a Chicago Tribune op-ed
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
captioned "Associate attorney general under Clinton: President had legal
authority to OK taps ..."
Similarly, a December 20 Wall Street Journal editorial
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
of PBS' The NewsHour with Jim Lehrer. Berenson worked
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."
—A.S., J.K., J.S., S.S.M., & R.S.K.