Warrantless Wiretapping is Illegal and Unneccessary
1. Bush did not violate the FISA (Foreign Intelligence Surveillance Act)
TALKING POINT: Bush's secret, warrantless spying on Americans is consistent with FISA statutes.
FACT: Utterly and completely false. The administration has repeatedly admitted 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: FISA allows unlimited warrantless surveillance of American citizens and U.S. permanent residents ("U.S. persons").
FACT: False.
TALKING POINT: Bush's actions are not scandalous since the administration retroactively informed the FISA court about its spying.
FACT: False.
2. Bush did not break the law
TALKING POINT: Bush's secret, warrantless spying on Americans is constitutional and legal.
FACT: False and false. In fact, the administration's withholding critical information from Congress was also likely a crime, one that violated the National Security Act. Not to mention, it appears that the warrantless spying was started even without a Presidential Executive Order and possibly even before 9/11.
TALKING POINT: Bush did not violate the National Security Act by not briefing appropriate members of Congress.
FACT: False.
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.
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 complained about some aspect of the program. 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."
TALKING POINT: The 9/18/01 Authorization for the Use of Military Force (AUMF) by Congress gave the President the right to order secret, warrantless wiretaps and searches on U.S. persons.
FACT: False, false, false and false. Further, as Glenn Greenwald has noted: "In the case of Breuer v. Jims 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 Bushs 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."
TALKING POINT: Per Article II of the Constitution, Bush's spying program was legal.
FACT: False.
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 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: 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 completely 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.
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.
TALKING POINT: Bill Clinton and Jimmy Carter authorized warrantless wiretapping/spying on Americans.
FACT: Totally and completely false.
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 Presidents authority was in the absence of any congressional statute. She wasnt arguing that the President had the authority to ignore FISA. In 1995, with President Clintons 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).
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
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 to monitor calls from Al Qaeda affiliated individuals overseas and Americans on US soil.
FACT: 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 Administrations 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 could have prevented 9/11 by helping us rope in two 9/11 terrorists in San Diego.
FACT: False.
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.
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.
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.
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.
TALKING POINT: The FISA statute requires getting a warrant 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. The truth is the opposite. FISA allows warrantless surveillaince for up to 72 hours.
TALKING POINT: The FISA process is not fast or agile enough to catch terrorists or prevent terrorism.
FACT: Totally and completely 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: "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 have ever faced. Heavens, it is far worse than anything we faced back in the good old days of the Cold War. Yes sir, we only had thousands of nuclear tipped missiles on a hair trigger pointed at each other. Let's not forget the B-52s that were aloft with bombs in their bellies."
6. Secretly spying on foreigners is legal and constitutional
TALKING POINT: It has long been agreed that secret, warrantless spying on foreigners is constitutional and legal.
FACT: This is a misleading talking point. The issue is not whether the US Government can spy on foreigners without a warrant (it can). The issue is Bush's unconstitutional, illegal, secret spying on Americans (on American soil).
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
TALKING POINT: The "physics" of Bush's illegal spying operation was such that it only captured two-way communications with one end inside "foreign soil".
FACT: False.
TALKING POINT: The spying was restricted to a "small" number of Americans who had links to terrorists.
FACT: False.
TALKING POINT: The illegal wiretapping occurred only on calls originating from outside the U.S.
FACT: False.
TALKING POINT: The illegal wiretapping did not catch any purely domestic calls within the U.S.
FACT: False.
TALKING POINT: The illegal spying was required to monitor "calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches"
FACT: False and false. If this were true, where is the list of people who blew up commuter trains, weddings and churches? Why are these monsters being hidden from public view and why were they only "monitored" and not arrested and tried in court (or deported if necessary)?
8. The leak to the New York Times, of Bush's secret spying on Americans, was a crime and had nothing to do with whistleblowers
TALKING POINT: The revelations about illegal domestic spying were not from whistleblowers.
FACT: False (also see here). In fact some NSA officials were disturbed when they got to know about the illegal spying.
TALKING POINT: Confirming the NYT story on Bush's illegal spying on Americans would compromise national security.
FACT: False, false, false and false. Not only did Bush himself subsequently confirm the story, as Glenn Greenwald notes: "...this same George Bush over the last two years -- as he campaigned for his own re-election and then as he campaigned for the permanent renewal of the Patriot Act has repeatedly talked about, in detail, how we engage in surveillance against terrorists, how we try to eavesdrop on their communications, and what methods we have created and now use to monitor what they are doing and saying...Bush has done so in far greater detail than anything the Times said. Worse, Bush has made similar public disclosures with regard to countless other intelligence and surveillance techniques which we use against terrorists...[more] "
William Arkin notes: " I doubt that there is a terrorist out there who doesn't assume that the NSA is listening in on their communications..."
Former CIA officer Larry Johnson notes: "The fact that the NSA has the ability to listen to electronic conversations, such as phone calls and emails, has been public knowledge since the 1970s. Al Qaeda has known this for more than ten years. The authors of the Al Qaeda training manual dealt specifically with the need to take precautions to prevent their conversations from being captured by U.S. listening posts. If we are dealing with terrorists who don't realize their conversations could be intercepted then we are after people who really must be living in a cave."
TALKING POINT: The leak to the New York Times of the illegal spying program was a crime.
FACT: False. As Glenn Greenwald has explained, not only is it actually a crime to classify information in order to hide Government wrong-doing (like Bush did in this case), leaks of classified information may or may not be crimes depending on the objective of the leak. A leak that exposes a crime (like the one to the NYT that exposed Bush's criminal actions) easily falls into the category of a whistleblower action that is not criminal.
Further, as former CIA officer Larry Johnson notes: "Too bad George Bush did not express the same outrage when Scooter Libby, Karl Rove, and others in his employ, told eager journalists that Joe Wilson's wife, Valerie Plame, was a CIA operative. I guess divulging secrets is okay if the White House needs to discredit Joe Wilson and his claim (subsequently proved true) that the President had misled the nation during his January 2004 State of the Union address...Remember the name of Mohammed Naeem Noor Khan? His name was leaked to the New York Times in August of 2004 while Khan was still cooperating with Pakistani, CIA, and British authorities as part of a sting operation against Osama bin Laden's network. On the eve of the Republican convention, unnamed senior NSC officials told New York Times reporters that Mr Khan was being used to send e-mails to al-Qaida members as part of a coordinated effort to identify and dismantle terrorist networks. Just because this leak destroyed the secret program's effectiveness was no big deal because he helped remind Americans that George Bush was the only one who could keep us safe."
TALKING POINT: The leak to the New York Times of the illegal spying program was a crime because it compromised national security just like when "news media published a U.S. government leak in 1998 about Osama bin Laden's use of a satellite phone, alerting the al Qaeda leader to government monitoring and prompting him to abandon the device."
FACT: False. The bin Laden story is completely false.
TALKING POINT: Such spying issues should have been settled in private rather than leak it to the New York Times.
FACT: Some people did try to settle some of the spying in private but were threatened with loss of jobs.
9. Bush's critics are just partisan political hacks
TALKING POINT: The critics of President Bush are just partisan Democrats who have an axe to grind.
FACT: Utterly false. (Also see here, here, here, here, here and here).
10. Top Democrats in Congress supported the illegal spying
TALKING POINT: The Bush administration "repeatedly consulted" with Congress, including Democrats.
FACT: False.
TALKING POINT: Democratic leaders were aware of all the details of the illegal spying and they did not express any reservations.
FACT: False, false, false, false, false. Moreover, as Glenn Greenwald notes: "The Administration forced these Congressional Democrats to remain silent and are now using that forced silence as evidence of their approval of this program. That reasoning is appallingly corrupt."
11. You can trust Bush 100% to not misuse the spying program
TALKING POINT: Bush and his senior staff have always been honest about wiretaps and court orders.
FACT: False, false, false, false, false. Bush in particular has lied brazenly and repeatedly about the true nature of the program.
TALKING POINT: The Bush administration can be fully trusted to not misuse its powers when it illegally spies on Americans.
FACT: False, false and false (to cite just a few examples).
12. The debate is between those who seek civil liberties and those who seek security
TALKING POINT: The debate is between those who seek civil liberties and those who seek security
FACT: False. In fact, it is a debate between those who know that achieving national security does not have to come at the cost of giving away some of the most fundamental liberties enshrined in the U.S. constitution, and those who, in cowardly fashion, are willing to surrender to the beliefs of totalitarian, communist or fundamentalist regimes that believe that national security is only possible by getting rid of fundamental civil liberties.
posted by and i at 11:12 AM
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