The Los Angeles Times, Associated Press, and Fox News' Special Report with Brit Hume, all reported the White House claim, made repeatedly at President Bush's press conference, that timeliness was the rational for the secret surveillance program, but did not report that current law allows for the government to get a warrant after the fact.
Following the recent revelation that President Bush authorized the National Security Agency (NSA) to conduct domestic surveillance without warrants, the media has widely reported the White House's claim that timeliness was the rationale for this secret program. But in their coverage of President Bush's December 19 press conference -- during which he repeatedly put forward this defense -- the Los Angeles Times, Associated Press, and Fox News' Special Report with Brit Hume all neglected to inform their readers and viewers that the current law governing such surveillance allows for the administration to obtain a warrant after the fact in cases in which “an emergency situation exists.”
A December 16 New York Times article revealed that Bush had granted the NSA the power to eavesdrop on international phone and email communications that originate from or are received within the United States without court approval. During the December 19 press conference, the president defended this decision by arguing that “we must be able to act fast ... so we can prevent new [terrorist] attacks” and that the NSA program “enables us to move faster and quicker.” Other administration officials have echoed this defense. For example, in a December 19 interview on CNN, Attorney General Alberto R. Gonzales stated, “I'm told by the operational folks at the National Security Agency that we do not have the speed and the agility in all cases, in every circumstance, to deal with this new kind of threat.”
What this argument appears to ignore, however, is that the court created under the Foreign Intelligence Surveillance Act (FISA) to provide authorization for international wiretaps is specifically designed to respond quickly to the type of requests in question. The so-called FISA court regularly authorizes these warrants within hours and even minutes. Moreover, in the case of “emergency” situations in which the attorney general deems it necessary to undertake surveillance immediately, the statute itself allows the government to obtain a warrant up to 72 hours after starting the necessary surveillance.
Nonetheless, a December 20 Los Angeles Times article on Bush's press conference quoted his defense of the program without noting any of these details regarding the nature of the FISA process:
His most forceful defense of the surveillance program focused on the argument that it was necessary to prevent terrorist attacks.
“To save American lives, we must be able to act fast and to detect these conversations so we can prevent new attacks,” he said, suggesting that courts could not act quickly enough.
The December 19 Associated Press article on the press conference also ignored FISA's 72-hour provision in simply reporting Bush's claim that speed was the rationale behind the secret NSA program:
Bush said the electronic eavesdropping program, conducted by the National Security Agency, lets the government move faster than the standard practice of seeking a court-authorized warrant under the Foreign Intelligence Surveillance Act. “We've got to be fast on our feet, quick to detect and prevent,” the president said.
Further, on the December 19 edition of Special Report with Brit Hume, Fox News chief Washington correspondent Jim Angle reported that the president had “suggested” at the press conference that the FISA requirements are “too slow.” But Angle did not inform viewers that FISA warrants can be obtained retroactively or that the FISA court normally delivers such authorizations in a quick manner:
ANGLE: Though the president authorized the National Security Agency to intercept phone calls and e-mails -- but only those linked to Al Qaeda -- even if one end of the conversation in the United States, some argue that requires a warrant from what is known as the FISA court, which operates in secret. The president suggested that would have been too slow.
BUSH [video clip]: The people responsible for helping us protect and defend came forth with the current program, because it enables us to move faster and quicker.
ANGLE: But congressional critics argue the president has taken the law in his own hands, that he doesn't have the authority to order electronic intercepts of anyone in the U.S. without getting a search warrant.
By contrast, numerous other news outlets cited the apparent contradiction between the Bush administration's argument and the facts regarding FISA. A December 20 New York Times article clearly explained that FISA allows the NSA “to tap international communications of people in the United States and then go to a secret court up to 72 hours later for retroactive permission.” A December 20 USA Today article reported that administration officials had “struggled to explain why the administration could not have relied on FISA provisions that allow surveillance to be conducted and a warrant obtained after the fact in emergencies.” And a December 20 Washington Post article reported that Bush had failed to explain “why the current system is not quick enough”:
Bush's remarks left many critics unassuaged and many questions unanswered. The president offered no details about how many people are under surveillance, what standard must be met to intercept communications or what terrorist plots have been disrupted as a result of the program.
Nor did he explain why the current system is not quick enough to meet the needs of the fight against terrorism. Under the Foreign Intelligence Surveillance Act, the NSA in urgent situations can already eavesdrop on international telephone calls for 72 hours without a warrant, as long as it goes to a secret intelligence court by the end of that period for retroactive permission.