On the August 27 broadcast of KNUS 710's Backbone Radio, a show founded by former Colorado Senate president John Andrews (R), terrorism analyst Harvey Kushner made the dubious claim that the Bush administration's warrantless wiretapping program conducted by the National Security Agency (NSA) “has borne fruit certainly in a variety of different cases, for example in...[the] recent apprehension of a variety of terrorists and alleged terrorists in Great Britain who planned to blow up planes over the Atlantic.” In fact, neither news articles nor members of the Bush administration have stated that there is a connection between the warrantless wiretapping program and the foiling of the alleged plot to bomb transatlantic flights that British authorities disrupted August 10. Additionally, Kushner stated that “the NSA intercept program is a very valuable program” -- a contention that is also highly in dispute.

The New York Times first revealed the surveillance program in 2005, reporting that, according to unnamed government officials, “President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying.” The Foreign Intelligence Surveillance Act (FISA), except as otherwise specifically provided, requires the government to obtain a warrant to conduct surveillance on United States citizens and lawful residents in the United States. As Backbone guest host and blogger Joshua Sharf noted, on August 17, federal district court judge Anna Diggs Taylor ruled that the warrantless surveillance program violated FISA and the First and Fourth Amendments to the United States Constitution.

As Media Matters for America has noted, the Bush administration and news reports have said there is no evidence of any U.S. connection to the British plot -- a fact that appears to undermine Kushner's assertion that it was foiled in part by the warrantless monitoring of international communications of people in the United States. In an August 11 press conference, Homeland Security Secretary Michael Chertoff stated that “we do not have any evidence that there was, as part of this plot, any plan to initiate activity inside the United States, or that the plotting was done in the United States.” He later added that “we did not see any U.S. internal activity in this plot.” Further, The New York Times reported in an August 15 article by Eric Lichtblau that, according to law enforcement officials, “no links to any Americans have surfaced.”

In addition, while it has been confirmed that U.S. authorities, once alerted to the London plot, conducted extensive surveillance of suspects within the United States, news reports indicate the eavesdropping occurred in accordance with FISA, as Media Matters for America also noted. Indeed, Lichtblau reported on August 15 that “the Justice Department sought double or triple the usual rate of court-approved wiretaps to monitor the communications of American suspects” in the plot.

Moreover, contrary to Kushner's assertion that “the NSA intercept program is a very valuable program,” as Colorado Media Matters has noted, a January 17 New York Times article reported that “current and former officials” said the large amount of tips from the NSA wiretapping “led them to few potential terrorists inside the country they did not [already] know of” and that chasing after these leads “diverted agents from counterterrorism work they viewed as more productive.”

Kushner also asserted that the warrantless surveillance program played a role in the 2002 arrest in Lackawanna, N.Y., of a group of Americans of Yemeni descent who later pled guilty to terrorism charges. The Times reported on December 28, 2005, that defense lawyers for the men were preparing legal challenges on the grounds that evidence against them might have been obtained illegally through the warrantless wiretap program.

From the August 27 broadcast of KNUS 710's Backbone Radio:

SHARF: Could you talk a little about the importance of the NSA and SWIFT-type programs, and in particular a little bit about the judicial decision that came down this week -- the almost content-free judicial decision that came down this week striking down the NSA intercept program?

KUSHNER: Well, the NSA intercept program is a very valuable program -- very much misunderstood -- and is lobbied against by a variety of different organizations that have made some headway in their lobbying efforts, such as the American Civil Liberties Union, as well as the Council of American-Islamic Relations, which feels that it's intrusive to Islamic Americans. The NSA had a program -- and has a program -- which collects data on a regular basis through a variety of different means. One is electronically. So it was the perception here that there were people sitting around with headsets on at the NSA listening in to conversations, which was far from the case. It really was a computer-based program which would look at a variety of different variables, and when indicators were right, would focus in on a particular, either electronic or some other type of transfer of information, generally through either cyberspace or telephone lines, or through other means.

This has borne fruit certainly in a variety of different cases, for example in New York in the Lackawanna Five, the cell -- Al Qaeda cell -- as well as [the] recent apprehension of a variety of terrorists and alleged terrorists in Great Britain who planned to blow up planes over the Atlantic. But again, people feel -- certain people feel -- that it is an intrusive means to spy on, they believe, American citizens. Let me just tell you that most of the spying that did take place was from foreign entities entering into the United States, and yes, there were quite a few cases where calls went outside here to known terrorist conspirators or known terrorist organizations outside this country. The other side argues generally that there are courts, and we should get a warrant if we have to wiretap. But, quite frankly, that might be true. But if that was true 20 years ago -- certainly when we fought World War II -- but today with the changing technology and the rapid pace of things, we need to have the ability to do things on a split-second notice. And the NSA's hands are tied if in fact this ruling does indeed put them out of business.