December 19, 2005

Risen's New Lows

New York Times reporters James Risen and Eric Lichtblau continued their assault on America's domestic security today in an article that sensationalizes the scope of Bush's executive order, studiously avoids the Administration's legal justification for NSA surveillance of terror suspects, and avoids addressing their own moral culpability in the almost certainly illegal leaking of classified intelligence information in on-going anti-terror operations.

Risen (who just happens to have a book coming out very soon) and Lichtblau start their article with this bit of willful misdirection:

Secretary of State Condoleezza Rice on Sunday defended President Bush's decision to secretly authorize the National Security Agency to eavesdrop on Americans without seeking warrants, saying the program was carefully controlled and necessary to close gaps in the nation's counterterrorism efforts.

To read Risen and Lichtblau today one might get the impression that any and all Americans are subject to a warrantless search. That is not the case, as Risen and Lichtblau themselves state just a few days ago:

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said.

Only those people thought to be communicating and collaborating with al Qaeda terrorists overseas were subject to surveillance. Risen and Lichtblau purposefully conflate the limited number of people affected to drum up hysteria in the American people their nation is spying on them.

This is a dishonest attempt to engender fears (and no doubt advanced book sales) that a narrowly-tailored executive order targeting just a few hundred or few thousand terrorist-linked email addresses and phone numbers, is general surveillance of all citizen communications in a nation of 295 million.

Legally Blind
Risen and Lichtblau are more than willing to mention that the Foreign Intelligence Surveillance Act of 1978 (FISA) requires a court order to seek surveillance on suspected terrorists or spies, but somehow, they seem unable to find a legal precedent from 2000 entitled U.S vs. bin Laden (h/t Instapundit) that says in part:

“Circuit courts applying Keith [that's the FISA law] to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the United States that target foreign powers or their agents.”

While I'm no lawyer (nor do I play one on television), it would seem to me that that U.S. courts have an established judicial precedent for bypassing FISA in certain circumstances - the circumstances that two Attorney Generals, Justice Department, lawyers and White House Counsel all seem to affirm that President Bush was within his constitutional authority in addressing with his executive order to the NSA.

Other useful bits of information the Times crack reporters seem to have trouble finding—or at least reporting—were Executive Order 12333 issued while Ronald Reagan was in office, stipulations of FISA itself, and the President's constitutional authority, as noted by Hugh Hewitt:

Overlooked in most of the commentary on the New York Times article is the simple, undeniable fact that the president has the power to conduct warantless surveillance of foreign powers conspiring to kill Americans or attack the government. The Fourth Amendment, which prohibits "unreasonable" searches and seizures has not been interpreted by the Supreme Court to restrict this inherent presidential power. The 1978 Foreign Intelligence Surveillance Act (an introduction from a critic of the Act is here) cannot be read as a limit on a constitutional authority even if the Act purported to so limit that authority.
"Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."

That is from the 1972 decision in United States v. United States District Court for the Eastern District of Michigan et al, (407 U.S. 297) which is where the debate over the president's executive order ought to begin and end. The FISA statute can have no impact on a constitutional authority, any more than an Act of Congress could diminish the First Amendment protection provided newspapers. Statutes cannot add to or detract from constitutional authority.

In short, a truthful, competent year-long investigation of President Bush's executive order regarding surveillance of terror suspects should have reflected the legal basis from which the authority was drawn.

It is a shame that honest reporting, or for that matter, the safety of the American people, are of little apparent concern for the Times and its reporters.

Posted by Confederate Yankee at December 19, 2005 02:12 AM | TrackBack

There is absolutely nothing about this left wing media attempt to besmirch President Bush that surprises me. It does not matter to Risen and Lichtblau that there is a constitutional authority afforded the president that empowers him to act accordingly. It only matters that a population perception could be fostered; one that included government spying upon “Americans” as if it were routine that every American came under this scrutiny. This is journalistic dishonesty at its finest. If this is what is taught at our fine schools of journalism, then they have descended to a level comparable to armed robbery of liquor stores. In fact robbing liquor stores impacts a very minute population, whereas this kind of journalistic dishonesty impacts millions of citizens and threatens a presidency. These two useful idiots should be barred from journalism forever. Actually, they should be tried for treason and their editors and the NYT should be named as accomplices. A very unfortunate outcome of this is that these two totally irresponsible “reporters” (NOT) will be heralded by the left as heroes and every word soaked up as if it were gospel. They’ve had their desired effect. What a pity there are two sets of rules…

Posted by: Old Soldier at December 19, 2005 08:20 AM

It's questionable whether the Times would publish it, but this should be sent to the NY times in the form of a letter to the editor. You at least have to let them know that you and your readers know what terrible liars they are!

Posted by: Donald Dewey at December 19, 2005 09:22 AM

To Old Soldier,

I take exception to the fact you calld them "Useful Idiots". What use do they have?

Posted by: Retired Navy at December 19, 2005 09:41 AM

One small (but probably important) correction in the citation above.

Keith was a Supreme Court decision that predated the establishment of FISA by 7 years. Keith is not the same as FISA; although the justices in Keith, including the majority opinion written by Justice Powell, argued for a FISA-type of court and laws.

So, one could say that FISA is a progeny of Keith.

Posted by: SteveMG at December 19, 2005 09:59 AM

westerners who denied the existence of his police-state terror. The liberadicals seem to deny the significance of combating radical Islamic terrorists, so I dubbed them “useful idiots.” But you are absolutely right; they don’t serve a useful purpose, do they?

Posted by: Old Soldier at December 19, 2005 11:05 AM

So much for getting the whole comment at one time...

Retired Navy, you got me there. I can only claim usage of the old Vladimir Lenin term for the westerners who denied the existence of his police-state terror. The liberadicals seem to deny the significance of combating radical Islamic terrorists, so I dubbed them “useful idiots.” But you are absolutely right; they don’t serve a useful purpose, do they?

CY, please be kind and delete my prior partial post. Thanks.

Posted by: Old Soldier at December 19, 2005 11:07 AM

Old Soldier,

The rest of your post stands perfectly fine as far as I'm concerned. Maybe we could just amend it to "Useless Idiots". Besides, my little tongue in cheek was meant to make you smile even over two boneheads that wouldn't know real news if it bit them you know where.

Posted by: Retired Navy at December 19, 2005 12:20 PM

Confederate Yankee wrote:
To read Risen and Lichtblau today one might get the impression that any and all Americans are subject to a warrantless search.
Only those people thought to be communicating and collaborating with al Qaeda terrorists overseas were subject to surveillance.

If there is no oversight to the process, then these two statements are perfectly compatible. Any American can be thought to be collaborating with Al Qaeda terrorists and thus subjected to warrantless search and surveillance.

I'm not saying that they are in fact misusing this power -- I'm complaining that I have no way of knowing if they are. You're saying to blindly trust the President because there's no way that the President would misuse his power. I claim that the past has shown that anyone given power without oversight is capable of abusing that power.

I agree that domestic terrorism is a theat, but it is important to keep it in perspective to other threats. Compare for a moment the total number of murders within the U.S. in the past three years (over 48,000) to the number of people killed by Islamic terrorism.

Posted by: jhkim at December 19, 2005 01:55 PM
You're saying to blindly trust the President because there's no way that the President would misuse his power.

No, I'm not saying anything of the sort. This executive order, to be the best of my limited knowledge of executive orders, is very heavily "lawyered up."

This executive order, before being implemented the first time, went through Attorney General John Ashcroft and the best lawyers in the United States Justice Department, who worked very closely with White House Counsel to ensure that the EE was a legal compliment to FISA.

Since its inception, it has been reviewed and approved more than three dozen times by two Attorney's General and the best legal minds in the United States government (career government lawyers that will have to use this evidence in court, not politicians, it bears repeating). It is also created with the knowledge of the FISA court (which few seem to want to acknowledge), which is still updated on the use of the document. Leaders of both parties, in both houses of Congress, have known about this program from its inception, and have been updated on its progress no less than a dozen times. None had any apparent problems with it.

Blind trust? Hardly.

Posted by: Confederate Yankee at December 19, 2005 02:34 PM

While I can understand your concern that there is no oversight (one I can share if I believed it to be true), there have been briefings to congressional leaders quite a few times. This has not been blanket Big Brother move but more of a surgical strike to look into activites deemed "questionable" in reguards to National Security.

I have stated before I fully support our constitiution and rights but this doesn't violate them. If you arent doing anything wrong you shouldn't have anything to worry about.

The American public (Both Liberal and Conservative) would not let any kind of police state to happen. I may be hopefully optomistic but I even believe all of Congress would not let that happen. I do think that you have to protect Life first, then Liberty then let people persue happiness. I believe that on a Global scale, not just for us in the U.S.

Posted by: Retired Navy at December 19, 2005 02:35 PM

Retired Navy - Question for you. Why should they not get warrants to listen to the conversations of American citizens? According to the law they are even allowed to listen and then get a warrant up to 72 hours later. But they MUST get a warrant according to the law and the Constitution.

Why let them decide to just violate that law? And doesn't the violation of law bother you at all? Doesn't it seem to imply that they were doing soething they COULDN'T get a warrant to do?

FYI Both Bob Graham and Harry Reid say they were NOT briefed. Reid has said he was told one sentence four years after the warrantless spying began. (Graham was head of the Intelligence Committee at the time the warrantless spying began.)

Apparently four Republicans were briefed - that's it.

Posted by: Dave Johnson at December 19, 2005 05:05 PM


Where on earth are you getting your information? Reid has admitted he was briefed, and his words have been reported in dozens if not hundreds of sources. Simply type in his name and NSA in a Google News search. You guys aren't waiting even a week to start revising history. Is that a record?

Democrats and Republican leaders in both houses were notified, along with thw House and Senate intelligence committees including Daschle when he was in office. You should really rely on something other than Kos and the Onion as news sources.

While getting FISA warrants approved is relatively easy, going through the procedural mechanism to get requests to to the FISA court can take months. That is well documented.

You are also completely wrong when you state that they have to have warrants in all circumstances(the courts say no, you don't in terror cases, and I'll provide case law later). Nor did this order violate the constitution, and in fact it derives it power expressly from the Constituion.

I'll have more tonight, Dave, so be sure to check back then. I mention it once before and I'll say it again: This is going to be the CBS/Mary Mapes story all over again, but bigger.

Posted by: Confederate Yankee at December 19, 2005 05:28 PM

Indeed. If Congress was so thoroughly briefed, why did, say, Republican Arlen Specter say "There is no doubt that this is inappropriate" -- as stated in the Fox News Story which you yourself linked to?

I don't know for sure if what was done had some constitutional justification or not. I'll leave that up to Congress and the courts, eventually. But I think it is irresponsible to say that anyone concerned about the allegations are unthinking Leftists.

Posted by: jhkim at December 19, 2005 05:35 PM

Its hard to believe that you guys are bending over backwards to justify wide spread violation of the 4th Amendment. The Executive does not have the authority to impugn civil liberties without oversight of the Judicial branch. Why would Bush do an end run around FISA courts? The only reason that makes sense is that it was done for political, not defense or anti-terrorism, purposes.

Bush has violated his oath of office and should be impeached.

Posted by: John Gillnitz at December 19, 2005 05:39 PM

Any reason is a good reason to proceed with impeachment hearings for Bush, right? Even if he operated within the law? Doesn't matter, right? Just get the SOB outa office at any cost; right, wrong or indifferent!

How many times does it have to be referenced that the President acted within his executive powers? Try reading another discourse here:

If the Democrats put just half as much effort into supporting this country as they do opposing Bush at every turn, Iraq would be settled business and we could be having a whole new line of discourse about Iran. I'm sorry, I just find the whole Democrat obstruction gig over the top. I believe it will tell on the party come November '06, too.

Posted by: Old Soldier at December 19, 2005 07:04 PM

Oh, please. At least the current complaints have something vaguely to do with what Bush is doing in his role as President. At around this point in Clinton's terms, the Right was screaming bloody murder and trying to impeach him over fooling around with some intern. Pot... kettle... black.

Posted by: jhkim at December 19, 2005 08:21 PM

jhkim, you ask:

Indeed. If Congress was so thoroughly briefed, why did, say, Republican Arlen Specter say "There is no doubt that this is inappropriate" -- as stated in the Fox News Story which you yourself linked to?

Do you actually read things? Is suspect not, or you would note that the people notified were members of House and Senate intelligence committees and the House and Senate leadership. Specter is neither, and did not need to be notified at the time.


There are two apparent 4th amendment exceptions (border search and national security) that apply as noted by law professor Orin Kerr, and the Article II point many are making is far from being unconstitutional or illegal, it seems, becuase it has never been tested. By definition, if something has not yet been defined, it is not unconstitutional, nor illegal. It is possibly an untested "first principles" case.

Clinton was impeached for perjury, by the way.

Posted by: Confederate Yankee at December 19, 2005 09:23 PM

"At around this point in Clinton's terms, the Right was screaming bloody murder and trying to impeach him over fooling around with some intern. Pot... kettle... black."

As CY pointed out, it wasn't about sex, it was about lying under oath; something we would expect the chief executive to NOT do. Oh, BTW, perjury is actually an impeachable offense. Pot – black, Kettle – clean.

Posted by: Old Soldier at December 19, 2005 09:54 PM

What some folks have not discussed here is how Bill Clinton used his Office to instruct the NSA to monitor U.S. citizens inside the U.S. who were employed by foreign companies. The Clinton efforts were not to thwart any terrorists. Thet were reportedly attempts by Clinton to spy on foreign corporations through U.S. employees inside the U.S.

It was the subject of a CBS 60 Minutes piece early in 2000. The NSA program was called Project Echelon, according to CBS and others.

When I was with the NSA during the Reagan Administration, we were absoltely forbidden to perform such surveillance. It is a different world out there now.

Posted by: Retired Spy at December 20, 2005 12:20 AM

A couple of observations to separate rhetoric from fact:


It is interesting to read the way FISA defines "Electronic Surveillance"[as found in 50 U.S.C.A. § 1801(f), read it for yourself]. Using simple logic, it is even more interesting how those definitions create several gaping loopholes that, taken in conjunction of established case precedent of the presidential power for warrantless searches involving national security issues, would clearly allow monitoring of persons in the U.S. without a FISA warrant. Consider what FISA does NOT regulate as electronic surveillance:

1. The acquisition of any radio communication in which either one of the intended recipients or the sender is outside the United States and the purpose of the interception is not to target specifically a United States citizen or permanent resident of the U.S.(i.e., illegals or non-permanent residents may be freely monitored by the U.S. in this situation, even while in U.S. Cellular phones come to mind).
2. Any interception of a wire communication from any person in the U.S. if the communication is intercepted outside U.S. Territory and, again, the purpose of the interception is not to target specifically a United States citizen or permanent resident of the U.S. (again, virtually any international call may be tapped just outside U.S. territory, as in just offshore, etc.)

Thinking creatively, these loopholes allow an intelligence officer to gather a great deal of information under Presidential authority for a warrantless search, even considering the confines of FISA.


At first blush, one would assume that FISA is the end-all, be-all of domestic surveillance. This is true only when one assumes that a warrant is necessary under the Fourth Amendment to conduct all searches. Of course, this is not true. Consider the recent case of In re Sealed Case, 310 F.3d 717 (2002)[heard by the FISA court's own special appeals court, the U.S. Foreign Intelligence Surveillance Court of Review], which cogently stated in pertinent part that:

"The distinction between ordinary criminal prosecutions and extraordinary situations underlies the Supreme Court's approval of entirely warrantless and even suspicionless searches that are designed to serve the government's "special needs, beyond the normal need for law enforcement." Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 2391, 132 L.Ed.2d 564 (1995) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987)[stating that "A search unsupported by probable cause can be constitutional, we have said, 'when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'"].

Furthemore, the same court openly assumed in its closing statement that the President had "inherent constitutional authority to conduct warrantless foreign intelligence surveillance."

And therein lies the rub for the recent FISA evangelists in Congress: Congress cannot pass any law that restricts the inherent constitutional authority of another branch -- no more than the President can disband Congress or the Supreme Court can set next year's fiscal budget. In short, implementation of national security is the exclusive province of the Commander-in-Chief, and it will be entertaining to see FISA go down in flames in a future court case as an unconstitutional restriction of the President's authority to defend the country where special needs dictate the immediate surveillance of known or suspected terrorists in our midst.

Posted by: Atticus_NC at December 20, 2005 12:43 AM

There is an added wrinkle to consider - for what it is worth. As Commander in Chief, the president has the responsibility for directing all components of the military, including the Department of Defense. That is his responsibility under the U.S. Constitution. Anyone care to argue with that?

Well, The National Security Agency is a Department of Defense organization. It's budget is within the DoD budget authorizations, and its Director has ALWAYS been a military Flag Officer. I just find that an interesting little factoid for the armchair lawyers to consider.

Would that not make the president the Commander in Chief of the NSA?

Posted by: Retired Spy at December 20, 2005 12:49 AM

Retired Spy:

It certainly would!

Posted by: Atticus_NC at December 20, 2005 12:56 AM

"Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."

George Bush, April 2004.

Posted by: lucas at December 20, 2005 11:25 PM

Congratulations Lucas! You "caught" President Bush talking about domestic wiretaps inside the United States as performed by the FBI under the Patriot Act.

I'm starting to understand why liberals can't discuss this issue intelligently...

Posted by: Confederate Yankee at December 20, 2005 11:46 PM

To catch Bush on a "lie" on this topic is akin to sending all intelligence agents to hell for lying in the name of protecting our country.

So, it's okay to lie about sex with Monica, but not okay to lie to the American people to protect a covert program to catch terrorists?

Get a grip, people. I mean -- really. As Supreme Court justice Robert Jackson so deftly said: "The Constitution is not a suicide pact." Neither is telling the American people the truth all the time, sacrificing full disclosure in the name of putting a terrorist bulls-eye on our foreheads.

Posted by: Atticus_NC at December 21, 2005 08:49 PM

Our new pal, Lucas, is regurgitating the same garbage that Alan Colmes used as 'evidence' on the Hannity and Colmes Show last night. I sent Colmes an email to set him straight. Other liberals were using the same quote.

As CY noted, these boneheads provide us with clear insight into why liberals can only accuse - not discuss intelligently.

They don't know the difference between physical wiretaps and collection of electromagnetic emissions through the airwaves? Duh!

Posted by: Retired Spy at December 22, 2005 04:11 PM

Bravo! I've found an educated, intelligent discussion board. Atticus and Confederate Yankee, thank you -- your comments and references have greatly aided my view of events and debates with the lazy. (Lazy: those that repeat rantings of "Evil!" without researching what really happened; often called ignorant, their ignorance comes from laziness.)

Posted by: globalroamer at December 30, 2005 03:43 PM

I am curious? Why do you discuss things with "Kos types"? They have no intelligence to understand ANYTHING. No left wing DemocRat idiot does?

Posted by: leaddog2 at December 30, 2005 07:02 PM