AP provided misleading, incomplete backgrounder on domestic spying program
Research ››› ››› JOSH KALVEN
An Associated Press Q&A purporting to address some of the issues regarding the Bush administration's domestic surveillance program contained misleading and incomplete answers.
In a January 27 article, Associated Press staff writer Katherine Shrader purported to clarify the ongoing controversy surrounding the Bush administration's warrantless domestic surveillance program by raising and answering 12 questions on the issue. But many of Shrader's answers were misleading or incomplete.
Q: Can the NSA eavesdrop on Americans?
A: Generally, it is prohibited without a court order. But under a directive signed by President Bush, and renewed more than 30 times, the National Security Agency can monitor the international communications of people inside the country, when one party to the call or e-mail is believed to be involved with al-Qaida.
Shrader's answer to this initial question suggests that because Bush signed an executive order authorizing the National Security Agency (NSA) to intercept the international communications of U.S. residents without warrants, the practice is therefore lawful. But this explanation overlooks entirely the question at the heart of the controversy: Does the Bush administration have the legal authority to bypass an explicit statue that prohibits -- not "generally," as Shrader wrote, but explicitly -- such operations?
A more accurate answer might have read:
Yes. The Foreign Intelligence Surveillance Act (FISA), passed by Congress in 1978, allows the NSA to conduct domestic surveillance for foreign intelligence purposes. It requires, however, that the agency obtain a warrant from a secret court within 72 hours of initiating the surveillance activities. Shortly after 9-11, President Bush authorized the NSA to bypass FISA, and the agency has since eavesdropped on the communications of U.S. residents without the warrants required by the law. President Bush claims that he derives authority to circumvent FISA from two sources: the Constitution and the Authorization for Use of Military Force (AUMF) passed by Congress in 2001. Whether his position is correct or whether his actions violate the law is the central question in this controversy.
Q: What did Bush's directive change?
A: In national security investigations, the program eliminated the need to go before a judge for approval of surveillance on U.S. residents.
Previously, government lawyers had to show the Foreign Intelligence Surveillance Court that there was "probable cause" a targeted person was an agent of a foreign power. A federal judge had to approve a warrant, and typically did. Bush's order allowed the NSA -- not a judge -- to approve the monitoring when officials had a "reasonable basis to believe" one party to the call or e-mail was linked to al-Qaida.
Once again, the wording of Shrader's answer (the president's program "eliminated" the FISA requirements; his order "allowed" the NSA to act without judicial oversight) appears to concede that he possessed the legal authority to unilaterally take this action. But these matters are in dispute.
Indeed, critics of the program contend that the Bush administration does not have the authority to bypass FISA and therefore did not "change" anything. They argue that the law's requirements remain in effect and that the president appears to be operating in clear violation of them.
Q: Why the uproar?
A: For the administration's critics, the program harkens back to the Nixon administration's wiretapping. It also raises constitutional questions about whether the monitoring is an unreasonable search, prohibited under the Constitution's Fourth Amendment.
While Shrader correctly reported that critics of the program have asserted Fourth Amendment concerns, she ignored the full scope of objections to the Bush administration's actions. Foremost among them is the fact that the NSA program appears to violate FISA -- a law passed by Congress, whose status under the Constitution is co-equal to that of the president. It is Bush's apparent flouting of a congressional act -- and arguable usurpation of legislative authority -- that has many members of Congress concerned about the program. For example, Sen. Arlen Specter (R-PA) has called the program "inappropriate" and has described the administration's argument that it was authorized by the AUMF to conduct the warrantless surveillance as "very, very thin" and "a stretch." Sen. John McCain (R-AZ) has said he does not think the president had the legal authority to order the surveillance. And Sen. Sam Brownback (R-KS) has asserted that he did not vote to give "the president broad surveillance authority with that resolution [the AUMF]." Nonetheless, Shrader's response entirely ignores this element of the controversy.
Further, critics have strenuously objected to the administration's repeated claim that it adequately briefed select members of Congress about the NSA program. Shrader addressed this issue in the eighth question but, as noted below, minimized the dispute surrounding it.
Q: Was Congress told?
A: The administration says that members of Congress were briefed more than a dozen times. However, only select lawmakers were present. Called the "Gang of Eight," they include the top Republicans and Democrats in the House and Senate and on the intelligence committees.
In the program's four years, the lawmakers included in that group have changed, so few -- if any -- attended all the briefings. And some privately say they weren't given all the information they needed.
In simply reporting that "some privately say they weren't given all the information they needed," Shrader minimized lawmakers' objections to the administration's claim that it adequately informed the "Gang of Eight" of the NSA program and ignored a finding by the nonpartisan Congressional Research Service (CRS) that the briefings appeared not to comply with the law. Shrader's answer also wholly ignores the fact that the few lawmakers briefed on the program were prevented from discussing it with anyone, including fellow members of Congress and staff. In fact, Sen. John D. Rockefeller IV (D-WV) said in a 2003 letter to Vice President Dick Cheney -- which he wrote by hand reportedly to keep the program confidential to his staff -- that security restrictions made him "unable to fully evaluate, much less endorse" the program, and has since said that his concerns about it "were never addressed." Further, former Sen. Bob Graham (D-FL) claimed that he was never informed "that the program would involve eavesdropping on American citizens," as The New York Times reported on December 21.
As Media Matters for America has further noted, Rockefeller, Graham, Rep. Peter Hoekstra (R-MI), and Senate Democratic Leader Harry Reid (D-NV) have all stated that they did not receive written reports from the White House on the surveillance operation, as required by the National Security Act of 1947.
Moreover, Schrader ignored a January 18 CRS report which noted that the Bush administration's limited notification of Congress about the domestic surveillance program "appear[s] to be inconsistent with the law."
Q: Did the White House consider asking Congress to change the law?
A: Yes. Although Bush says he has adequate legal authority now, Gonzales said the administration considered proposing changes to the Foreign Intelligence Surveillance Act in 2004. The attorney general said congressional leaders believed that move would jeopardize the program.
Some Democrats are quietly arguing the administration thought it was on shaky ground in 2003. A draft bill proposed giving legal cover to federal officials who conduct unauthorized surveillance ordered by the president or attorney general. That update to the Patriot Act, leaked to an interest group, was never introduced in Congress.
While the examples Shrader provided are certainly pertinent to the issue at hand, she overlooked a crucial aspect of the White House's interactions with Congress regarding FISA and the domestic spying program. She failed note that in 2002 the Bush administration refused to support legislation sponsored by Sen. Mike DeWine (R-OH) to loosen the standard under FISA for conducting domestic surveillance on "non-US persons." At the time, the Justice Department said that lowering the standard was likely unnecessary and possibly unconstitutional.