Thursday :: Jan 5, 2006

King-George-gate: Myths v. Realities


by eriposte

[Last updated 2/14/06]

PREFACE

George Bush's most infamous lie on this scandal (4/20/04):

Now, by the way, anytime you hear the United States government talking about wire tap, it requires—a wire tap 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.

Glenn Greenwald:

As always, the first -- and, for this scandal, the dipositive -- principle is that the solution to a bad law is to change the law, not to break the law in secret and then claim once you’re caught that the law you broke was a bad law.
...
No judge would even listen to a criminal defendant try to explain that he broke the law because the law was too stringent or was ill-advised, and we should be no more willing to listen to that excuse for law-breaking just because it’s coming from George Bush.

George Bush's actions in ordering illegal domestic spying are completely reminiscent of the criminality of Richard Nixon, who said:

When the President does it, that means that it it is not illegal.

This scandal is also about what The Agonist says:

The NSA-domestic spying Bush scandal is no longer about national security (although Republicans want it to be). It's about lying and the law. It's a simple sentence. This is about lying and the law.

Billmon has an apt comparison:

Bush declined to discuss the domestic eavesdropping program in a television interview, but he joined his aides in saying that the government acted lawfully and did not intrude on citizens' rights.
"Decisions made are made understanding we have an obligation to protect the civil liberties of the American people," Bush said on "The NewsHour With Jim Lehrer."

Washington Post
December 2005

Citizens of the U.S.S.R. are guaranteed inviolability of the person. No person may be placed under arrest except by decision of a court or with the sanction of a procurator.
The inviolability of the homes of citizens and privacy of correspondence are protected by law.

Constitution of the USSR
December 1936

INTRODUCTION

As most readers here know, the Shills for Republican-Dictators Coalition (SRDC) have been producing the expected voluminous stream of unmitigated lies in the form of talking points, in order to defend the illegal domestic spying program authorized by their Dear Leader-King George Bush - a man who has the track record for being one of the worst Presidents when it comes to national security. Bush's charlatans in the SRDC have been selling this program (and America) by peddling the utterly false choice of "liberty or security". (In fact, the administration has failed to explain why it claims it did not spy on purely domestic calls between Al Qaeda members even though that presents even more of a national security risk). As always, when the internets and airwaves are filled with fakery, it becomes "hard work" to keep track of it all. So, I thought it was time for a post to consolidate the well chronicled responses to the cornucopia of nonsense from the SRDC. In putting this together I have mostly used (and referred to) some outstanding work done by other bloggers - Unclaimed Territory (Glenn Greenwald), Think Progress (especially Judd Legum), Anonymous Liberal, Armando at Daily Kos, Media Matters, Coleen Rowley, Larry Johnson, Huffington Post, Firedoglake and others. [I will update this post when possible, as this scandal evolves].

Since there are various categories of false and occasionaly misleading talking points from the SRDC, I decided to address them under the following sections. But the one overarching point to keep in mind is that, with most of their claims defending Bush having been revealed to be false, Bush's supporters are left with just one legally unsustainable claim justifying Bush's illegal and unconstitutional actions - that Bush is above the law and does not have to defer to the Constitution, the Judiciary or to Congress (a radical, unAmerican philosophy that Bush has made a practice during his reign). To mask this, Bush and his co-conspirator ("Attorney General") Alberto Gonzales are trying to bamboozle Americans by falsely claiming a "legal basis" and "legal reasoning" (using the Department of Justice as their personal defense attorney) for their illegal and anti-American law-breaking - with Gonzales having likely committed a crime by deceiving the Senate. Indeed, the nonpartisan and highly regarded Congressional Research Service (CRS) has stated politely that the legal justifications offered by the Bush administration to conduct illegal wiretapping of American citizens and permanent residents do not really hold water (more on this in Appendix 1). CRS has also weighed in to point out that the Bush administration also likely violated the National Security Act (see Appendix 2). Moreover, leading constitutional law experts (and former Government officials) agree that Bush's actions were illegal (also see here and here and Appendix 3).

Talking Points For Felonious Republican Presidents (Registered Trademark of SRDC)

1. Bush did not violate the FISA [FALSE]
2. Bush did not break the law [FALSE]
3. History shows Presidents have the power to violate the law, especially in times of war [FALSE]
4. History shows that other Presidents like Bill Clinton and Jimmy Carter did the same by overriding FISA [FALSE]
5. Secret warrantless spying of Americans was/is required for national security reasons, since FISA was inadequate, and secret spying could have prevented 9/11 [FALSE]
6. Secretly spying on foreigners is legal and constitutional [DELIBERATELY MISLEADING]
7. The secret spying only focused on Al Qaeda, terrorists and their supporters and one end of the intercepted communications was always in foreign soil [FALSE]
8. The leak to the New York Times, of Bush's secret spying on Americans, was a crime, had nothing to do with whistleblowers, and compromised the spying program [FALSE]
9. Bush's critics are just partisan political hacks [FALSE]
10. Top Democrats in Congress supported the illegal spying [FALSE]
11. You can trust Bush 100% to not misuse the spying program [FALSE]
12. The debate is between those who seek civil liberties and those who seek security [FALSE]
APPENDIX 1: Report of nonpartisan Congressional Research Service On the Bush administration's stated legal justifications for their warrantless spying on Americans
APPENDIX 2: Report of nonpartisan Congressional Research Service On the Bush administration's likely violation of the National Security Act
APPENDIX 3: Response to Bush administration's DOJ Memo "Legal Authorities Supporting the Activites of the National Security Agency Described by the President" by 14 Constitutional Scholars


1. Bush did not violate the FISA (Foreign Intelligence Surveillance Act)

TALKING POINT: Americans were not spied on without a warrant.
FACT: This is perhaps the most brazen lie (since Bush himself has acknowledged otherwise) - unsurprisingly from one of the biggest frauds in the United States today, Rush Limbaugh.

TALKING POINT: Bush's secret, warrantless spying on Americans is consistent with FISA statutes.
FACT: False, false, false, false. The administration has repeatedly (effectively) admitted (latest here) that what they did violates the FISA statutes (and so did some of its legal defenders).

TALKING POINT: The wording of the FISA statute allows the Bush administration to do what they did.
FACT: False.

TALKING POINT: Bush did not "circumvent" FISA.
FACT: False. He actually broke the FISA (law).

TALKING POINT: The spying program that Bush authorized is outside the scope of FISA.
FACT: False. Even Attorney General Alberto Gonzales admitted that Bush's program fell within the scope of FISA and that the President's power would be restricted in the presence of a Congressional statute that specifically curtails his power.

TALKING POINT: FISA allows unlimited warrantless surveillance of American citizens and U.S. permanent residents ("U.S. persons").
FACT: False.

TALKING POINT: "The FISA “probable cause” standard is essentially the same as the “reasonable basis” standard" used in the domestic spying program
FACT: According to former NSA Director Hayden this is false (also see here).

TALKING POINT: The FISA “probable cause” standard is higher than the “reasonable basis” standard used in the domestic spying program
FACT: According to Attorney General Gonzales this is false. In other words, two senior officials of the Bush administration have made completely opposing claims about the legal basis for the spying program.

TALKING POINT: The “reasonable suspicion” standard associated with the 2002 amendment that the Bush administration rejected owing to legal and constitutional concerns was lower than the "reasonable basis" standard used in their domestic spying program.
FACT: False.

TALKING POINT: Bush's actions are not scandalous since the administration retroactively informed the FISA court about its spying.
FACT: False.

TALKING POINT: FISA does not apply during wartime - so Bush did not violate it.
FACT: False, false and false - FISA has specific wartime provisions that Bush violated. Not to mention, Attorney General Alberto Gonzales admitted that "There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force".

TALKING POINT: Bush did not violate FISA; rather FISA unconstitutionally usurps his power.
FACT: False and false. If it really did, he could have had it repealed after 9/11 or amended to give him limitless power. He was not able to do either even with his rubber-stamp-Congress, because Congress would not support it. In fact, FISA was amended after 9/11 using the Patriot Act and the amendment still does not allow Bush to break the law in the way he did. Even Attorney General Alberto Gonzales admitted that Bush's program fell within the scope of FISA and that the President's power would be restricted in the presence of a Congressional statute that specifically curtails his power.


2. Bush did not break the law

TALKING POINT: Bush's secret, warrantless spying on Americans is constitutional and legal.
FACT: False, false and false. Indeed, the nonpartisan and highly regarded Congressional Research Service (CRS) has stated politely that the legal justifications offered by the Bush administration to conduct illegal wiretapping of American citizens and permanent residents do not really hold water (more on this in Appendix 1). CRS has also weighed in to point out that the Bush administration also likely violated the National Security Act (see Appendix 2). Moreover, leading constitutional law experts (and former Government officials) agree that Bush's actions were illegal (also see here and here). NSA Director Michael Hayden also committed an illegal act in violating the Fraud and False Statements Statute. Not to mention, it appears that some form of warrantless spying (different from the main NSA spying program) was started in 2001 even without Bush's Executive Order and apparently even before 9/11 (the latter would make it even more obvious that the fake justification that such spying could have prevented 9/11, is, um, fake.) [Incidentally, the Pentagon has also violated the law with its illegal domestic spying program.]

TALKING POINT: Bush did not violate the National Security Act by not briefing appropriate members of Congress.
FACT: False.

TALKING POINT: The Bush administration had two lawful paths to choose - FISA and the president’s authorization - and Bush picked the latter.
FACT: False and false. Only FISA was/is legal.

TALKING POINT: The Constitution of the United States does not talk about "probable cause" being required for spying on Americans.
FACT: False and false.

TALKING POINT: Searches of Americans without warrants happens all the time in airports, checkpoints, etc. So what's the big deal?
FACT: This is a bogus argument from Gonzales. Unlike those who are boarding a plane or crossing a checkpoint, the Bush spying program was SECRET and the targets had no choice because the Americans who were spied upon didn’t know that their email was being read or that their phone calls were being monitored. Moreover, there is a vast difference between searches in public view where there is little probability of abuse (especially with the effective consent of the individuals - they choose to fly despite the probability of being searched), and secret searches conducted without probable cause or warrants or independent oversight, with high potential for abuse and with the spying conducted without the consent of the targets.

TALKING POINT: The 9/18/01 Authorization for the Use of Military Force (AUMF) by Congress gave the President the authority to order secret, warrantless wiretaps and searches on U.S. persons.
FACT A: False and false. As Anonymous Liberal has carefully chronicled, Bush was applauding the passing of the Orwellian PATRIOT Act six weeks after the passage of AUMF, saying how it was the PATRIOT Act that gave him the authority to deal with terrorists in ways that the original FISA law did not, that it allowed him to "conduct court-ordered surveillance of all modern forms of communication used by terrorists" and that it will "will help us to prosecute terrorist organizations--and also to detect them before they strike". Put another way, as AL points out: "I found a copy of the President's October 26, 2001 Remarks on the Signing the USA Patriot Act of 2001...the President made these remarks almost six weeks AFTER Congress passed the Authorization for the Use of Military Force ("AUMF"), the law which he now claims gave him the authority to conduct warrantless surveillance outside of FISA's framework. Yet in this signing statement, the President clearly indicates that until that day, Oct. 26, 2001, he lacked the authority to properly deal with the nature of the terrorist threat".
FACT B: False, false, false, false and false. Here's Republican Senator Sam Brownback: "It didn’t, in my vote. I voted for that resolution. That was a week after 9/11. There was nothing you were going to do to stop us from going to war in Afghanistan, but there was no discussion in anything that I was around that that gave the president a broad surveillance authority with that resolution."
As Glenn Greenwald also noted: "In the case of Breuer v. Jim’s Concrete of Brevard, 538 U.S. 691 (2003), the Administration vehemently (and successfully) argued in a Brief to the U.S. Supreme Court (.pdf), signed by Bush’s own Solicitor General, Theodore Olson, that a statute (such as FISA) cannot be "amended by implication" in the absence of clear Congressional intent to amend it."
Moreover, as Glenn noted: "Congress refused to enact the DeWine Amendment and thus refused to lower the FISA standard from "probable cause" to "reasonable suspicion." It is the height of absurdity for the Administration to now suggest that Congress actually approved of this change and gave it authorization to do just that -- when Congress obviously had no idea it was being done and refused to pass that change into law when it had the chance. (2) DeWine's amendment would have lowered the standard for obtaining a FISA warrant only for non-U.S. persons -- whereas for "U.S. persons," the standard would have continued to be "probable cause." And, DeWine's amendment would not have eliminated judicial oversight, since the Administration still would have needed approval of the FISA court for these warrants."

TALKING POINT: The 9/18/01 Authorization for the Use of Military Force (AUMF) by Congress gave the President more authority than the traditional declaration of war.
FACT: False (see page 4 of this PDF file). As the constitutional scholars point out: "Declarations of war have always been accompanied, in the same enactment, by an authorization to use military force".

TALKING POINT: The 9/18/01 Authorization for the Use of Military Force (AUMF) by Congress effectively amended FISA.
FACT: False and false.

TALKING POINT: The Supreme Court's ruling in Hamdi v. Rumsfeld (2004) makes it clear that the 2001 AUMF authorized Bush's spying.
FACT: False (see page 3 of this PDF file).

TALKING POINT: Bush's executive order authorizing warrantless spying on Americans was constitutional and legal even though it applied a looser "reasonable basis" argument rather than a "probable cause" argument.
FACT: False. In fact, not only is the "reasonable basis" argument illegal, spying on Americans without a warrant is also illegal, and what's more, as Glenn Greenwald has shown, the Bush administration themselves admitted in 2002 (also see here) that even spying on non-Americans on American soil simply based on warrants using "reasonable suspicion" may violate the constitution and cause legal problems! (Also see here and here). As Glenn Greenwald also noted: "Indeed, throughout 2002 and into 2003 – while the Administration was secretly eavesdropping without bothering to comply with FISA at all – Senators from both parties were drafting legislation to liberalize FISA, holding hearings before the Senate Intelligence Committee on proposed FISA changes, making all sorts of grand statements about how these changes to FISA were needed in order to allow the Administration to do the eavesdropping on terrorists which our national security required. But all of this was worthless, a total sham. Nothing could have mattered less than what the Senate decided to do with FISA because the Administration -- obviously unbeknownst to the Senate -- had already decided that it could eavesdrop however it wanted no matter what the Senate said and no matter what FISA allowed."

TALKING POINT: Warrantless physical searches for foreign intelligence have been carried out previously.
FACT: First of all, the issue here is not foreign intelligence but intelligence on U.S. persons. Secondly, warrantless physical searches relating to foreign intelligence were not illegal per the FISA in 1994, but were made illegal subsequent to that through a Clinton-supported update to the FISA law in 1995. [Sure, such warrantless searches should never have been legal but it was a loophole in the law that Congress and the Clinton administration fixed.]

TALKING POINT: The warrantless spying on Americans was legal since the Justice Department signed off on it.
FACT: Separate from the fact that the Justice Department is not the final legal authority in the US (the Supreme Court is), senior Justice Department officials objected to at least parts of the spying program and the special FISA judge - Colleen Kollar-Kotelly - complained about some aspect of the program (all in 2004). It was also reported that "the judge insisted to Justice Department lawyers at one point that any material gathered under the special N.S.A. program not be used in seeking wiretap warrants from her court." In fact, acting Attorney General James Comey objected to some provisions of the illegal spying in 2004 and the Bush administration went to John Ashcroft for his approval even though Ashcroft was in hospital. Apparently Ashcroft was also reluctant to give blanket approval and "in early 2004, about the time of the hospital meeting, the White House suspended parts of the surveillance program for several months and moved ahead with more stringent requirements on the National Security Agency on how the program was used." At that time the Justice Department actually audited the secret spying program for the first time. Newsweek has reported how some leading conservative lawyers in the Bush Justice Department objeted to the administration's illegal power grab.

TALKING POINT: Per Article II of the Constitution, Bush's spying program was legal.
FACT: False.

TALKING POINT: Bush's power as Commander-in-Chief cannot be restricted by Congressional laws and Congress has no power to restrict the Executive's "means and methods of engaging the enemy".
FACT: False (see pages 5-7 of this PDF file) - as even the Supreme Court ruled recently in Rasul v. Bush (2004), among many past rulings. The constitutional scholars who authored the document point out clearly that: "Every time the Supreme Court has confronted a statute limiting the Commander-in-Chief's authority, it has upheld the statute."

TALKING POINT: An Appeals Court (In re: Sealed Case No. 02-001) ruled that FISA could not encroach on the president's "authority to conduct warrantless searches to obtain foreign intelligence information."
FACT: This is a grossly misleading point. FISA encroaches on the President's ability to violate FISA, but does not control what else the President can do in accordance with the Constitution, that is outside the scope of FISA. The Constitution, on the other hand, prohibits the President from doing warrantless spying on Americans. As Media Matters points out (emphasis mine): "Of course a law passed in 1978 would not trump the Constitution -- the supreme law of the land. The question is whether Bush, as president, has the constitutional authority to authorize warrantless surveillance of U.S. citizens and legalized aliens, notwithstanding FISA's restrictions. Contrary to [John] Schmidt's suggestion, the case he cited does not address that question."

TALKING POINT: An Appeals Court (In re: Sealed Case No. 02-001) ruled that the "president has inherent constitutional authority to conduct warrantless wiretapping".
FACT: False.

TALKING POINT: An Appeals Court ruled in the Truong case that the Executive had the right to secretly wiretap or spy on Americans without a warrant.
FACT: False. The Truong case related to an incident that occurred before the FISA law was passed (and the court acknowledged that). Once the FISA law passed in 1978 such spying was declared illegal.

TALKING POINT: In the case United States v. United States District Court for the Eastern District of Michigan et al. (1972), the court ruled that warrantless spying on Americans is constitutional.
FACT: False. The court ruled exactly the opposite.

TALKING POINT: Based on historical (legal) evidence, Bush has the authority under the Constitution to spy on Americans without a warrant.
FACT: False. Moreover, since Bush's actions violated Congressionally enacted FISA statues, as Glenn Greenwald explains: "...The issue is not whether the President has this authority to eavesdrop without a warrant but whether it is legal for him to do so in the face of a Congressional law which makes it a crime to engage in such conduct. And none of the authorities they cite conclude that the President has such a royal power. Not one." In the case Youngstown Co. v. Sawyer (1952), the Supreme Court specifically held that: "the President does not have the right to exercise his "inherent executive authority" in contravention of Congressional law." As Justice Jackson said: "The Executive, except for recommendation and veto, has no legislative power."

TALKING POINT: The Youngstown Co. v. Sawyer (1952) Supreme Court ruling supports Bush's illegal spying.
FACT: False. The exact opposite is true.

TALKING POINT: Congress cannot authorize something that needs to remain classified.
FACT: False.


3. History shows American Presidents have the power to violate the law, especially in times of war

TALKING POINT: Courts have ruled that the limitations imposed by FISA on the President, especially in times of war, are unconstitutional.
FACT: False.

TALKING POINT: In a time of war, the President has a blank check to break the law in order to "protect the country".
FACT: This claim is also false and has been rejected by the U.S. Supreme Court on more than one occasion.

TALKING POINT: Presidents should be allowed to break the law under certain circumstances.
FACT: If you are an America-hater, yes. But if you are an American, no. [Certainly if the President happens to be a Democrat, Republicans have a history of loudly saying NO.]


4. History shows that other Presidents like Bill Clinton and Jimmy Carter did the same by overriding FISA

TALKING POINT: Bill Clinton bypassed FISA to order warrantless physical searches of Americans.
FACT: False and false (also see here).

TALKING POINT: The Clinton administration's Jamie Gorelick claimed that the President has the "inherent constitutional ability to order wiretapped searches".
FACT: False.

TALKING POINT: Bill Clinton "exercised the same authority" as Bush.
FACT: False and false.

TALKING POINT: Bill Clinton and Jimmy Carter broke the law by authorizing warrantless wiretapping/spying on Americans.
FACT: False, false, false, false, and false (also see here).

TALKING POINT: Bill Clinton and Jamie Gorelick (who was in the Clinton Justice Department) argued that Clinton had the power to ignore FISA.
FACT: False and false. As Judd Legum (Think Progress) noted: "Both her testimony and in the Legal Times quote [sic], were about physical searches. In 1994, the FISA did not cover physical searches. She was explaining what the President’s authority was in the absence of any congressional statute. She wasn’t arguing that the President had the authority to ignore FISA. In 1995, with President Clinton’s signature, FISA was amended to include physical searches. That law prohibited warrantless domestic physical searches. No one in the Clinton administration, including Gorelick, ever argued that the administration could ignore the law, before or after it was amended."

TALKING POINT: Bill Clinton bypassed the FISA law when Aldrich Ames' house was searched without a warrant.
FACT: False.

TALKING POINT: Bill Clinton's top secret Echelon project violated FISA and spied on Americans.
FACT: False and false (see #10 in the link).

TALKING POINT: Al Gore's speech on Bush's illegal spying contradicted the facts surrounding the Clinton administration's spying on Americans.
FACT: False, false, false, false and false.


5. Secret warrantless spying of Americans was/is required for national security reasons, since FISA was inadequate and a bad law, and secret spying could have prevented 9/11

TALKING POINT: Secret, illegal, warrantless spying on Americans enhances our national security.
FACT: Certainly no more than secret, legal, warrant-based spying; further, the illegal spying actually threatens America's national security because of the aid and comfort it gives to real terrorist supporters when they go to court (not Bush's kangaroo courts but the real court system in the United States). It also makes it easier to challenge Government prosecutions against alleged criminals.

TALKING POINT: The warrantless illegal spying was required because FISA unacceptably regulates wiretapping of calls from Al Qaeda members overseas to Americans in the U.S.
FACT: False. This is another bogus argument because FISA does not apply to such calls at all. As 14 constitutional scholars pointed out: "FISA does not regulate electronic surveillance acquired abroad and targeted at non-U.S. persons, even if the surveillance happens to collect information on a communication with a U.S. person. Thus, the hypothetical tap on the Al Qaeda member abroad is not governed by FISA at all. FISA's requirements are triggered only when the surveillance is "targeting [a] United States person who is in the United States," or the surveillance "acquisition occurs in the United States." 50 U.S.C. 1801 (f)(1)-(2)."

TALKING POINT: The warrantless illegal spying was required because they had to monitor calls between Al Qaeda affiliated individuals and Americans on US soil.
FACT: False and false. As Glenn Greenwald notes: "...that defense makes no sense because eavesdropping on conversations involving al Qaeda members is exactly the circumstance in which it would be most unnecessary to bypass the FISA court. For that reason, the Administration's claim that it only eavesdropped on conversations involving al Qaeda members simply cannot be reconciled with the Administration’s claimed need to operate outside of FISA, since if FISA allows anything, it would allow eavsdropping on al Qaeda."

TALKING POINT: The illegal spying program was instrumental in revealing Al Qaeda plots within the U.S. and capturing Al Qaeda members.
FACT: False. As this NYT report points out: "The law enforcement and counterterrorism officials said the program had uncovered no active Qaeda networks inside the United States planning attacks. "There were no imminent plots - not inside the United States," the former F.B.I. official said." As the New York Daily News reported: "The National Security Agency's secret domestic spying hasn't nabbed any Al Qaeda agents in the U.S. since the Sept. 11 attacks, FBI Director Robert Mueller told Congress yesterday."

TALKING POINT: The illegal spying program was instrumental in capturing confessed Al Qaeda member Iyman Faris and prevented his plot to blow up the Brooklyn Bridge.
FACT: False (also see here and here).

TALKING POINT: The illegal spying program was instrumental in capturing confessed Taliban-supporting Mohammed Junaid Babar who was linked to the British fertilizer bomb plot.
FACT: False.

TALKING POINT: The illegal spying program was instrumental in capturing and convicting the Taliban-supporting "Portland Seven".
FACT: False.

TALKING POINT: The illegal spying program was instrumental in preventing the Library Tower "plot" in Los Angeles.
FACT: False. Also see this.

TALKING POINT: The illegal spying program could have prevented 9/11 by helping us rope in two 9/11 terrorists in San Diego.
FACT: False, false, false, false and false. Also, as Think Progress notes from a NYT article: "The law enforcement and counterterrorism officials said the program had uncovered no active Qaeda networks inside the United States planning attacks. ‘There were no imminent plots - not inside the United States,’ the former F.B.I. official said.”" Not to mention, as Think Progress notes, Bush himself claimed in June 2002 that 9/11 was not preventable!

TALKING POINT: The illegal spying program could have helped us pick up two 9/11 terrorists who flew a plane into the Pentagon.
FACT: False and false.

TALKING POINT: The illegal spying program could have roped in Zacarias Moussaoui or Mohammad Atta and prevented 9/11.
FACT: False and false, not to mention Moussaoui (and Atta) were foreign nationals to whom FISA already applied and a FISA warrant was not obtained in Moussaoui's case because the Justice Department was not asked by the FBI to obtain a FISA warrant. Moreover, as Frank Rich said (emphasis mine): "...[Cheney] defended warrant-free wiretapping by saying it could have prevented the 9/11 attacks. Really? Not with this administration in charge. On 9/10 the N.S.A. (lawfully) intercepted messages in Arabic saying, "The match is about to begin," and, "Tomorrow is zero hour." You know the rest. Like all the chatter our government picked up during the president's excellent brush-clearing Crawford vacation of 2001, it was relegated to mañana; the N.S.A. didn't rouse itself to translate those warnings until 9/12." As William Arkin noted: "The vice president fails to mention that the NSA actually did intercept communications indicating an event on 9/11, but didn't process it before that day. The FBI had reports about the hijackers, but it never put two and two together. The government had plenty of tip-offs and signals but it just wasn't focused enough or competent enough to competently carry out its constitutional duties." Further, as Think Progress notes, Bush himself claimed in June 2002 that 9/11 was not preventable!

TALKING POINT: Requiring FISA warrants may tip off our enemies.
FACT: This is again, unmitigated garbage, as discussed in the previous point above (the FISA process is always secret).

TALKING POINT: FISA's "probable cause" standard for warrants was too restrictive and therefore did not allow the Justice Department (DoJ) to do the spying that was necessary.
FACT: False - the Bush administration/DoJ told Congress exactly the opposite in 2002.

TALKING POINT: FISA's 72-hour emergency window for wiretapping without a warrant was too cumbersome to use in practice and therefore not effective.
FACT: False - the Bush administration/DoJ told Congress exactly the opposite in 2002.

TALKING POINT: Many of the 9/11 perpetrators would have been considered "protected U.S. persons" per FISA
FACT: False. Many of the hijackers were neither citizens nor permanent residents, and worse, were here illegally on expired visas.

TALKING POINT: There was insufficient evidence to get a FISA warrant in the case of Moussaoui. A federal judge barred the FBI from accessing Zacarias Moussaoui's computer.
FACT: False and false.

TALKING POINT: The FISA law was inadequate and led to the FBI's not inspecting Moussaoui's personal effects.
FACT: False.

TALKING POINT: FISA's "probable cause" standard prevented the government from getting warrants in the Zacarias Moussaoui and Wen Ho Lee cases.
FACT: False. It was the FBI's (and DOJ's) misunderstanding of the FISA standard that prevented them from even asking for a warrant.

TALKING POINT: FISA required reform which had not happened even after 9/11.
FACT: False. Even though experts felt FISA required reform after 9/11, that already occurred via the Orwellian "PATRIOT" Act. Further, as Glenn Greenwald has shown, the Bush administration themselves rejected a proposal in 2002 to amend the FISA law to make it much easier to spy on targets, saying that FISA was sufficient for what they were doing. (Also see this).

TALKING POINT: The FISA statute is bad because it does not allow for immediate eavesdropping in emergencies. FISA requires getting a warrant before eavesdropping even for emergencies and the administration did not have one or two days to put together the paperwork to get such a warrant or wait for a judge.
FACT: False and false. The truth is the opposite. FISA allows warrantless surveillance for up to 72 hours. Moreover, Bush has used emergency FISA wiretaps more often than all previous Presidents combined!

TALKING POINT: The FISA court is too bureaucratic and cannot be used in emergencies.
FACT: False, false and false (also see here). FISA allows warrantless surveillance on U.S. persons for up to 72 hours and purely foreign agents for up to 1 year. Moreover, Bush has used emergency FISA wiretaps more often than all previous Presidents combined!
Further, as the Washington Post reported: "Several FISA judges said they also remain puzzled by Bush's assertion that the court was not "agile" or "nimble" enough to help catch terrorists...the court's actions in the days after the Sept. 11 attacks suggested that its judges were hardly unsympathetic to the needs of their nation at war...On Sept. 12...The requirement for detailed paperwork was greatly eased, allowing the NSA to begin eavesdropping the next day on anyone suspected of a link to al Qaeda, every person who had ever been a member or supporter of militant Islamic groups, and everyone ever linked to a terrorist watch list in the United States or abroad..."

TALKING POINT: The FISA process is not fast or agile enough to catch terrorists or prevent terrorism.
FACT: False, false, false, false and false. In fact, FISA actually allows secret, warrantless spying for up to 72 hours, which is more than sufficient for emergencies and the FISA court has almost never rejected a request for a warrant. If the Bush administration wanted an extension to that they could have asked Congress to pass a FISA amendment. [Not to mention, it appears that the warrantless spying was started even without a Presidential Executive Order and possibly even before 9/11. If it was indeed started before 9/11, it certainly didn't prevent 9/11].

TALKING POINT: "FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted. That review process can take precious time."
FACT: Another specious argument. The spying can begin without this wait, as long as the results of the spying are discarded if a warrant could not be obtained for it in the future. This is more than adequate for emergencies.

TALKING POINT: FISA had to be bypassed because it is an "old law" and there are fundamentally new technologies at work here.
FACT: False, false and false. Also see here for some perspective.

TALKING POINT: "This is a different era, different war. It's a war where people are changing phone numbers and phone calls, and they're moving quick. And we've got to be able to detect and prevent."
FACT: Highly misleading considering that FISA actually allows emergency wiretapping. Also see this set of posts by former CIA officer Larry Johnson who explains how U.S. intelligence agencies have in the past very successfully caught terrorists who keep switching phones, using roving wiretaps without having to break the law.

TALKING POINT: Terrorism is such a fundamentally new and unprecedented threat that it calls for extreme measures including giving up civil liberties.
FACT: False and false. (Other than revealing the fact that those making this argument are more often than not cowardly "bedwetters") The fact remains that the threat of terrorism, while substantial and requiring serious efforts to thwart it (as opposed to Bush's unprecedented incompetence on the matter), does not compare to the constant threat of large scale decimation during the Cold War. As former CIA officer Larry Johnson notes: "The "neo-conservative imperialists" live in a fantasy world where terrorism is the most deadly, horrific threat we

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