David R. Mark
Journalists Against Bush's BS
25 Jan 06
The act says that the National Security Agency must obtain a
warrant before conducting surveillance. (President Bush
acknowledged as much three times on the campaign trail last year.)
The Justice Department issued a 42-page defense of President
Bush’s warrantless domestic spying program, arguing that the
Supreme Court agreed with the administration that it was correct to
assume that detention of suspected terrorists was allowable, even
though the word "detention" does not appear in the post-9/11
Congressional Authorization For Use Of Military Force. Therefore,
the administration is correct to assume it can conduct surveillance
of telephone calls between domestic and foreign locations, even
though that is not expressed in the congressional
authorization.
The leap of logic, of course, is that the Bush Administration
received court approval in the earlier example. It sought no such
approval now. So while it assumed that it was operating legally, it
has no proof of that. And there's a long list of people --
including at least 11 Republican Senators and several prominent
conservatives -- who question the rationale.
But why should such things get in the way of today's press
conference? The Bush Administration has a nifty, Orwellian title
for their action -- calling it a "terrorist surveillance program"
-- and McClellan's job today was to get that name out there, and to
continue to suggest it's a "limited" program, involving
"international" calls, points that have been disputed.
Realize that since the surveillance program became known by the
public, the Bush Administration has offered a myriad of excuses,
many of which have been debunked. The Republican National Committee
falsely said that the Carter and Cllnton Administrations
circumvented FISA -- a charge that was debunked, but which
McClellan refers to again today. Attorney General Alberto Gonzales
said that Congress wouldn't have supported amending FISA to include
the administration's "data mining" plans -- alluded to today by
McClellan -- even though the assertion was later disputed by Sen.
John McCain (R-AZ). The Administration continues to say that it has
briefed members of Congress, who approved the process. Yet, various
senators have said that they were either misinformed at the time
about what the administration wanted to do, or not given a chance
to express disapproval with the plan.
If the administration's case was so strong, why do they have to
keep changing it, and why has it been so easy to debunk their
various arguments?
That question wasn't asked at today's press conference. But here's
a key exchange that gives you an idea of how McClellan works. He
gets his talking points out, but what about the reporter's
question? Duck, dodge and weave, and not much more.
Q Scott, Senator Specter sent the Attorney General a list of
questions that he was going -- planned to ask at the hearing about
the NSA surveillance program. And one of the questions he asked is,
would you consider seeking approval from the FISA court at this
time for the ongoing surveillance program. Is that something the
administration is thinking about?
McCLELLAN: Well, let me mention a couple of things. One, first of
all, let me just say I know the Attorney General looks forward to
participating in next week's hearing. Or it's actually -- I guess,
it's the following week, February 6th. The Attorney General looks
forward to talking with the committee and with congressional
leaders about the legal justification for this program. This is a
terrorist surveillance program. We are a nation engaged in war. It
is a limited, targeted program aimed at al Qaeda communications.
There has to be an international component to it, so we're talking
about international communications. And it has one sole purpose;
that is to detect and prevent attacks.
We've already talked about the FISA court. That is a very important
tool, as well, and we make very good use of the FISA tool. But FISA
was created in a different time period for longer-term monitoring.
This program is for a shorter period of time aimed at detection and
prevention. And so that's what it's focus is.
And I think we have to step back and remember that -- and I think
the Attorney General talked about this in his remarks yesterday --
there is a longtime tradition in war of engaging in surveillance of
the enemy. That's what this is. We are a nation at war, and there
is an enemy that is deadly and determined to strike us again and
inflict even greater damage. And we saw the problem highlighted in
the 9/11 Commission report when we learned too late about
communications that were taking place from two hijackers that were
in the United States talking to people outside the United States.
That's the kind of problem this is designed to detect, and then be
able to act and prevent attacks. It's about connecting the dots.
That's what the 9/11 Commission said we need to do.
So the President not only had the authority to do what he's doing,
but he has the responsibility to do what he is doing, because it's
about saving lives. It's about preventing attacks. It's very
limited in nature, and it's focused on international communications
involving al Qaeda members or affiliated terrorist organizations
from either communicating inside the United States to someone
outside, or communicating from outside the United States to someone
inside. And I think the American people expect us to do everything
within our lawful power to protect them. And the President made it
very clear that as long as he is President, he will continue acting
to do everything he can within his powers and within the law to
protect the American people. But we work very closely with
Congress. We have briefed members of Congress on this vital tool
over the course of the law few years, and we'll continue to work
closely with Congress.
Q I think that -- I mean, the way I read this question, he's
asking, will you ask the FISA court for approval of this program --
not specific instances, but will you ask the FISA court if this is
-- if this program, the overall program, is sanctioned under the
law. And that's the --
McCLELLAN: Well, if the FISA court wants to talk any more about any
communications that they have had with administration officials,
that's up to them. It is a highly classified court, for good
reasons.
Q They won't talk about it.
McCLELLAN: Well, that's why I leave it up to them. If there's
anything more they want to say, then I would leave it up to
them.
Q Can I just follow on this point, because let's be clear about a
couple of things. First of all, the President argues, asserts, that
he has the power to unilaterally authorize this wiretapping, okay?
It's not -- he doesn't have the monopoly on the truth of how
--
McCLELLAN: The courts have upheld it and previous administrations
have asserted it, as well.
Q Well, that was different, and that is, again -- this is your
position --
McCLELLAN: Same authority. Same authority, David.
Q -- that's in dispute.
McCLELLAN: No, that's not -- hang on -- that's not in dispute. And
look at the Associate Attorney General under the Clinton
administration. The courts have upheld this authority in the past.
Look at the federal courts. The President talked about it and we
provided it in a document. So that's wrong.
Q No, I don't think that's wrong, and we can go into that, but I
don't -- our time is not best spent doing that.
McCLELLAN: That the courts haven't upheld it?
Q My question is, instead of spending time trying to fine-tune the
rhetoric over what you want to call this program for political
purposes, why not seek to amend FISA so that it can better suit
your purposes, which is another thing the previous administration
did when it wasn't considered to be agile enough? So why not, if
you want the program to be more responsive, to be more agile, why
not seek to amend FISA?
McCLELLAN: Let's look at a practical example. Do you expect our
commanders, in a time of war, to go to a court while they're trying
to surveil the enemy? I don't think so. This is a time of war. This
is about wartime surveillance of the enemy. That's what this is
about. And we don't ask our commanders to go to the court and ask
for approval while they're trying to gain intelligence on the
enemy. So I think that's a real practical term to look at it in
when you're talking about this issue, because that's what this is
about.
Q There's no way to amend --
McCLELLAN: Well, no, let me back up, because I talked about this
the last couple days. I mean, it's a very good question and an
important question. FISA is an important tool. We use it. General
Hayden talked about that. When we were briefing members of Congress
over the course of the last few years -- I think it was more
recently, over, maybe, the last couple years -- I think the
Attorney General talked about it -- we talked with congressional
leaders, bipartisan congressional leaders, about this very issue:
Should we go and get legislation that would reflect the authority
the President already has? And those leaders felt that it could
compromise our national security interest and this program if we
were to go and get legislation passed. Because we don't want to let
the enemy know about our play book, and the more you talk about
this program, the more potential it has to harm our national
security interest. That's why we don't get into talking about the
operational aspects about it.
But it is important for the American people to understand exactly
what this program is and how limited it is and what its purpose is.
There's been some misrepresentations. Now, with that said, as I
pointed out, we work very closely with Congress. We'll continue to
work closely with Congress as we move forward. But the President
has the authority and the responsibility to do what he's doing and
he's going to keep doing it.
***
The way McClellan spins it, the administration has done nothing but
try to protect the American people from terrorists. But ask
yourself, if the administration is willing to skirt the law -- and
then come up with a myriad of easily debunked excuses to defend
itself -- what other rules will it overlook and what other civil
liberties will it violate, all under the heading of presidential
"authority."