In a January 19 Wall Street Journal op-ed (subscription required), Republican attorney and former Reagan Justice Department official Victoria Toensing offered a number of falsehoods in defending the Bush administration's warrantless domestic surveillance program. In attempting to justify the Bush administration's circumvention of the 1978 Foreign Intelligence Surveillance Act (FISA), which the surveillance program appears to have violated, Toensing falsely claimed that congressional Democrats “supported” the program prior to its public disclosure and repeated the false claim that, in 1995, the Clinton administration erected “the wall” between intelligence and law enforcement agencies.

Toensing, in her January 19 Journal op-ed, attempted to exculpate Bush from not going to Congress to amend FISA, writing:

Why did the president not ask Congress in 2001 to amend FISA to address these problems? My experience is instructive. After the TWA [Flight 847 hijacking] incident, I suggested asking the Hill to change the law. A career Justice Department official responded, “Congress will make it a political issue and we may come away with less ability to monitor.” The political posturing by Democrats who suddenly found problems with the NSA program after four years of supporting it during classified briefings only confirms that concern.

Toensing's claim that congressional Democrats “support[ed]” the program is false. As Media Matters for America noted, of the seven Democratic lawmakers known to have been briefed on the program prior to its public disclosure, three objected at the time and three more have said they weren't given adequate information about the program. Sen. John D. Rockefeller IV (D-WV), the ranking Democrat on the Senate Intelligence Committee, and House Minority Leader Nancy Pelosi (D-CA) are known to have expressed concern at the time of their briefing, and former Sen. Tom Daschle (D-SD) said he voiced concern, as well. Rep. Jane Harman (D-CA), the ranking Democrat on the House Intelligence Committee, and Senate Minority Leader Harry Reid (D-NV) said that the program was not fully laid out for them, while former Sen. Bob Graham (D-FL), the one-time chairman of the Senate Intelligence Committee, said he was not told the program would be directed at people within the United States. Shortly after the program was publicly disclosed, House and Senate Democrats sent a letter stating that media accounts of the program “have gone beyond what the administration” told Congress.

Additionally, a January 18 report by the nonpartisan Congressional Research Service noted that the Bush administration's limited notification of Congress about the domestic surveillance program “appear[s] to be inconsistent with the law.”

Toensing also wrongly blamed the Clinton administration for creating “the wall” preventing the sharing of information between intelligence and law enforcement agencies:

FISA's “primary purpose” became the basis for the “wall” in 1995, when the Clinton-Gore Justice Department prohibited those on the intelligence side from even communicating with those doing law enforcement. The Patriot Act corrected this problem and the FISA appeals court upheld the constitutionality of that amendment, characterizing the rigid interpretation as “puzzling.” The court cited an FBI agent's testimony that efforts to investigate two of the Sept. 11 hijackers were blocked by senior FBI officials, concerned about the FISA rule requiring separation.

As Media Matters for America has previously noted, what Toensing called “the wall” was established well before Clinton took office. The 2002 report of the joint inquiry by the House and Senate intelligence committees into intelligence failures prior to the September 11, 2001, terrorist attacks stated: “The 'wall' is not a single barrier, but a series of restrictions between and within agencies constructed over 60 years as a result of legal, policy, institutional and personal factors.” In fact, the very same FISA appeals court decision Toensing quoted demonstrated that the “wall” was a pre-Clinton creation. The FISA appeals court stated that the “puzzling” interpretation of the FISA statute cited by Toensing began in the 1980s -- not with the Clinton administration. From the November 19, 2002, FISA court opinon :

In light of these definitions, it is quite puzzling that the Justice Department, at some point during the 1980s, began to read the statute as limiting the Department's ability to obtain FISA orders if it intended to prosecute the targeted agents -- even for foreign intelligence crimes.

As Media Matters documented, Toensing also called in to the December 21 edition of CNN's The Situation Room and falsely claimed the Clinton administration “carr[ied] out the same authority” as Bush with regard to domestic surveillance.

In her Journal op-ed, Toensing went on to criticize the FISA statute, writing that it is “ill-equipped to deal with ever-changing terrorist threats” and “technologically antediluvian,” and that it “does not address computers, cell phones or fiber optics in the midst of war.” She further claimed that “the reasons the president might decide to bypass FISA courts are readily understandable.” Despite Toensing's characterization of the statute, FISA does address electronic surveillance during a time of war: It allows 15 calendar days of unwarranted electronic surveillance following an official declaration of war. If Bush felt FISA was too sluggish or “technologically antediluvian,” he should have gone to Congress to amend the law, according to former Reagan Justice Department official Bruce Fein, who wrote in a January 4 Washington Times op-ed:

In a Dec. 22, 2005 letter to Congress, the Department of Justice asserted: “FISA could not have provided the speed and agility required for the early warning detection system. In addition, any legislative change ... that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities.”

But FISA crowns the president with electronic surveillance powers without a court warrant for 15 days after a congressional declaration of war. That duration could have been indefinitely extended by Congress without alerting terrorists to anything new. Further, Congress might have been asked to lower the threshold of suspicion required to initiate surveillance without compromising intelligence sources or methods. Indeed, President Bush's continuation of the NSA's spying despite the disclosure by the New York Times discredits the argument that secrecy was indispensable to its effectiveness. On the other hand, congressional involvement in the early warning system would provide an outside check on whether the commander in chief is targeting only persons linked to al Qaeda or an affiliated terrorist organization.

According to Toensing, however, changing the law was not the president's responsibility -- that task falls to former Vice President Al Gore, who was critical of the Bush administration's warrantless espionage program in a January 16 speech, and Bush's “critics in Congress.” From Toensing's op-ed:

Today, FISA remains ill-equipped to deal with ever-changing terrorist threats. It was never envisioned to be a speedy collector of information to prevent an imminent attack on our soil. And the reasons the president might decide to bypass FISA courts are readily understandable, as it is easy to conjure up scenarios like the TWA hijacking, where strict adherence to FISA would jeopardize American lives.

The overarching problem is that FISA, written in 1978, is technologically antediluvian. It was drafted by legislators who had no concept of how terrorists could communicate in the 21st century or the technology that would be invented to intercept those communications. The rules regulating the acquisition of foreign intelligence communications were drafted when the targets to be monitored had one telephone number per residence and all the phones were plugged into the wall. Critics like Al Gore and especially critics in Congress, rather than carp, should address the gaps created by a law that governs peacetime communications-monitoring but does not address computers, cell phones or fiber optics in the midst of war.