Wash. Post reported without challenge the disputed claim that Bush administration “repeatedly consulted” Congress about domestic spy program

The Washington Post reported that the Bush administration “repeatedly consulted” Congress about its domestic spying program, even though members of Congress from both parties say they were not fully informed about the program, let alone consulted about it.

In a January 4 article by staff writer Dafna Linzer, The Washington Post repeated the much-disputed White House claim that the Bush administration “repeatedly consulted” Congress about its domestic surveillance program. In fact, both Republicans and Democrats in Congress have said that the administration didn't fully inform them of the operation, much less “consult” with them about it.

Linzer's uncritical repetition of the Bush administration's claim is especially noteworthy given that the article focused on a recently declassified letter that House Democratic Leader Nancy Pelosi (D-CA) wrote in 2001 to express concerns about the National Security Agency's (NSA) expanded use of electronic surveillance prior to Bush's formally authorizing the program. In detailing Pelosi's letter, Linzer ignored a primary concern Pelosi expressed in the letter -- that she was unable to obtain enough information about the secret program to assess its legality.

From Linzer's January 4 Washington Post article:

The NSA program operated in secret until it was made public in news accounts last month. Since then, President Bush and his advisers have defended it as legal and necessary to protect the country against future attacks and have said Congress was repeatedly consulted. But Democrats, some Republicans and constitutional law experts have raised concerns about whether Bush overstepped his constitutional authority and violated privacy laws meant to guard against the government spying on its own citizens without a warrant. The NSA's work, which is normally restricted to eavesdropping overseas, also angered judges on a special court that administers warrants for secret investigations.

Yet the available evidence suggests that the administration did not fully inform congressional leaders about the program, let alone “consult” them, which the Merriam-Webster Online Dictionary defines as “to ask the advice or opinion of” or “to deliberate together.” As Media Matters for America has noted, Sen. John D. Rockefeller IV (D-WV), Rep. Peter Hoekstra (R-MI), former Sen. Bob Graham (D-FL), 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, as amended in 2001. Further, Rockefeller wrote in a 2003 letter to Vice President Dick Cheney 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.” As the New York Times reported on December 21, Graham claimed that he was never informed “that the program would involve eavesdropping on American citizens.”

The Post article also failed to mention that Pelosi's 2001 letter indicated she was already concerned at the time that Congress wasn't receiving enough information about the NSA's expanded domestic surveillance. Instead, Linzer quoted from Pelosi's letter only to demonstrate that Pelosi raised the question of whether the NSA's actions had been authorized by Bush:

On Oct. 1, 2001, three weeks after the Sept. 11 terrorist attacks, Gen. Michael V. Hayden, who was running the National Security Agency at the time, told the House intelligence committee that the agency was broadening its surveillance authorities, according to a newly released letter sent to him that month by Minority Leader Nancy Pelosi (Calif.). Pelosi, the ranking Democrat on the committee, raised concerns in the letter, which was declassified with several redactions and made public yesterday by her staff.

“I am concerned whether and to what extent the National Security Agency has received specific presidential authorization for the operations you are conducting,” Pelosi wrote on Oct. 11, 2001.


Pelosi's letter suggested that she and others on the committee first heard about expanded work by the NSA on Oct. 1, 2001, when Hayden briefed them on NSA activities.

“During your appearance before the committee,” she wrote, “you indicated that you had been operating since the September 11 attacks with an expansive view of your authorities with respect to the conduct of electronic surveillance.” The letter, while redacted in parts concerned with surveillance, made clear that the agency was “forwarding” intercepts and other collected information to the FBI. Two sources familiar with the NSA program said Pelosi was directly referring to information collected without a warrant on U.S. citizens or residents.

But Pelosi indicated in her letter that she questioned not only with whether the program was legal, but also the ability of Congress to access the information necessary to make such a judgment. From Pelosi's October 11, 2001, letter:

You seemed to be inviting expressions of concern from us, if there were any, and, after the briefing was over and I had a chance to reflect on what you said, I instructed staff to get more information on this matter for me. For several reasons, including what I consider to be an overly broad interpretation of President Bush's directive of October 5 on sharing with Congress “classified or sensitive law enforcement information” it has not been possible to get answers to my questions.

Without those answers, the concerns I have about what you said on the 1st can not be resolved, and I wanted to bring them to your attention directly. You indicated that you were treating as a matter of first impression, [redacted] being of foreign intelligence interest. As a result, you were forwarding the intercepts, and any information [redacted] without first receiving a request for that identifying information to the Federal Bureau of Investigation. Although I may be persuaded by the strength of your analysis [redacted] I believe you have a much more difficult case to make [redacted] Therefore, I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting. Until I understand better the legal analysis regarding the sufficiency of the authority which underlies your decision on the appropriate way to proceed on this matter, I will continue to be concerned.