CNN's Wolf Blitzer, Lou Dobbs, and Kelli Arena characterized a judge's ruling that the Bush administration's warrantless domestic spying program is unconstitutional as a serious blow to the administration's efforts to combat terrorists. But it's not at all clear that the administration must violate the law to protect the country or that warrantless domestic wiretapping has been effective in combating terrorists.
On the August 17 editions of CNN's The Situation Room, host Wolf Blitzer baselessly asserted that a federal judge's ruling that the Bush administration's warrantless domestic spying program is unconstitutional was "a damaging blow for the Bush administration's anti-terror program." Later that day on CNN's Lou Dobbs Tonight, Dobbs similarly stated that the judge "str[uck] down a key part of the Bush administration's strategy to defeat radical Islamist terrorists," and CNN justice correspondent Kelli Arena echoed Blitzer's characterization of the ruling, stating that it was "a damaging blow for the Bush administration's anti-terror program." Their assertions make at least two assumptions that are by no means certain: first, that the administration's conduct of warrantless domestic wiretapping, which the Michigan judge struck down, is essential to its efforts to combat terror -- or, put another way, that the administration must violate the law to protect the country -- and, second, that warrantless domestic wiretapping has been effective in combating terrorists. Critics of the program would certainly take issue with the first, and, according to current and former intelligence officials cited in reports by The Washington Post and The New York Times, the domestic surveillance program has been largely ineffective, as Media Matters for America has noted.
As Media Matters has documented, many observers -- including conservatives -- have criticized the administration for conducting wiretaps outside of the law. For example:
- Sen. Patrick Leahy (D-VT), the ranking member of the Senate Judiciary Committee, in a statement before the Senate Judiciary Committee on February 6, "agree[d] that we should be wiretapping Al Qaeda terrorists." Leahy said that his concerns with the spy program center on the lack of congressional or judicial oversight: "Congress has given the president authority to monitor these messages legally, with checks to guard against abuses when Americans' conversations and email are being monitored. But instead, the president has chosen to do it illegally, without those safeguards."
- Rep. Jane Harman (D-CA), the ranking member of the House Permanent Select Committee on Intelligence, appearing on the May 14 edition of CBS' Face the Nation:
HARMAN: The second point is: [National Security Adviser Stephen] Hadley said that FISA, the Foreign Intelligence Surveillance Act, is not appropriate for this kind of thing. I couldn't agree more -- disagree more strongly. FISA, which was passed on a bipartisan basis by Congress in 1978, is the exclusive way to eavesdrop on Americans, and all aspects of this program -- many of us have been saying this -- all aspects of this program have to comply fully with FISA and the Fourth Amendment, and we need court warrants to do any aspect of this program.
BOB SCHIEFFER (host): Do you think the law has been broken here?
HARMAN: Yes, I do. I think the administration is breaking the law. Its legal rationale that it offers, I think, is extremely shaky. To this White House, the Constitution starts with Article 2, which is the power of the executives. They skip over Article 1 totally; that's the legislature, and Article 3 is the courts. As Arlen Specter just said, that we have a system of checks and balances. Each branch checks the excesses of the other branches. This is a lawless White House out of control with respect to a program like this. Sure, we all want to catch terrorists, but I am against an effort to have the executive branch monitor itself.
- Bruce Fein, former associate deputy attorney general under President Reagan, in a December 20, 2005, Washington Times column, stated:
President Bush presents a clear and present danger to the rule of law. He cannot be trusted to conduct the war against global terrorism with a decent respect for civil liberties and checks against executive abuses. Congress should swiftly enact a code that would require Mr. Bush to obtain legislative consent for every counterterrorism measure that would materially impair individual freedoms.
Mr. Bush acclaimed the secret surveillance as "crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies." But if that were justified, why was Congress not asked for legislative authorization in light of the legal cloud created by FISA and the legislative branch's sympathies shown in the Patriot Act and joint resolution for war? FISA requires court approval for national security wiretaps, and makes it a crime for a person to intentionally engage "in electronic surveillance under color of law, except as authorized by statute."
Mr. Bush cited the disruptions of "terrorist" cells in New York, Oregon, Virginia, California, Texas and Ohio as evidence of a pronounced domestic threat that compelled unilateral and secret action. But he failed to demonstrate those cells could not have been equally penetrated with customary legislative and judicial checks on executive overreaching.
The president maintained that, "As a result [of the NSA disclosure], our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk." But if secrecy were pivotal to the NSA's surveillance, why is the president continuing the eavesdropping? And why is he so carefree about risking the liberties of both the living and those yet to be born by flouting the Constitution's separation of powers and conflating constructive criticism with treason?
- Former Deputy Attorney General James Comey -- who, in 2004, was serving as acting attorney general while then-Attorney General John Ashcroft was in the hospital -- reportedly objected strenuously to the continuation of the warrantless program, prompting then-White House chief of staff Andrew H. Card Jr. and then-White House counsel Alberto R. Gonzales -- the current attorney general -- to visit Ashcroft's hospital room to obtain Department of Justice approval, as reported in a January 1 New York Times article.
- Former Rep. Bob Barr (R-GA) praised the decision striking down the warrantless wiretap program, writing in an August 17 statement on his personal website: "This is a win for all Americans -- Judge Taylor has upheld the Constitution in her ruling and has defended the privacy rights of all Americans against overreaching federal power." Barr added: "[W]hile we all support the Administration in its efforts to discover and thwart possible terrorist acts, including listening in on al Qaeda communications, our laws provide for a legal way for the government to proceed, and perhaps in light of this ruling the Administration will actually follow those laws."
- Washington Post columnist George F. Will wrote in a December 20, 2005, column:
On the assumption that Congress or a court would have been cooperative in September 2001, and that the cooperation could have kept necessary actions clearly lawful without conferring any benefit on the nation's enemies, the president's decision to authorize the NSA's surveillance without the complicity of a court or Congress was a mistake. Perhaps one caused by this administration's almost metabolic urge to keep Congress unnecessarily distant and hence disgruntled.
In addition, the domestic surveillance program has reportedly been largely ineffective. According to a February 5 Post article, which cited "current and former government officials," "nearly all" of the people whose calls were monitored under the National Security Agency (NSA) program were later "dismissed ... as potential suspects after hearing nothing pertinent to a terrorist threat." A January 17 Times article also cited "current and former officials" who challenged the effectiveness and utility of the program:
In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month. But virtually all of them, current and former officials say, led to dead ends or innocent Americans."
On August 17, Judge Anna Diggs Taylor of the U.S. District Court in Detroit rejected the Bush administration's legal defense of the program -- which since 2001 has authorized the NSA to eavesdrop on the international communications of U.S. persons without court orders required by FISA. Taylor ruled that the program violates FISA, as well as the First and Fourth Amendments, and ordered that the program be halted.
From the August 17 edition of CNN's The Situation Room:
BLITZER: A damaging blow today to the Bush administration's anti-terror program. A federal judge in Detroit ruled that the wiretapping of Americans without court orders -- unconstitutional. The judge ordered an immediate halt to the domestic spying operation carried out by the National Security Agency. The Justice Department, though, is appealing.
From the August 17 edition of CNN's Lou Dobbs Tonight:
DOBBS: Tonight, a federal judge strikes down a key part of the Bush administration's strategy to defeat radical Islamist terrorists. The judge says warrantless wiretaps are unconstitutional. The judge has ordered an immediate halt to the program. We'll have complete coverage tonight.
ARENA: Lou, this was a damaging blow for the Bush administration's anti-terror program. A federal judge ordered an immediate halt to the domestic spying operation carried out by the National Security Agency.