Friday, December 30

Consequences of Illegal Spying

The NYTimes is reporting that Defense Attorney's around the country are planning to file numerous motions and appeals for their clients who been either accused and/or convicted of terrorism based on the NSA Spying Scandal.

WASHINGTON, Dec. 27 - Defense lawyers in some of the country's biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.

The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out.

The expected legal challenges, in cases from Florida, Ohio, Oregon and Virginia, add another dimension to the growing controversy over the agency's domestic surveillance program and could jeopardize some of the Bush administration's most important courtroom victories in terror cases, legal analysts say.

The question of whether the N.S.A. program was used in criminal prosecutions and whether it improperly influenced them raises "fascinating and difficult questions," said Carl W. Tobias, a law professor at the University of Richmond who has studied terrorism prosecutions.

"It seems to me that it would be relevant to a person's case," Professor Tobias said. "I would expect the government to say that it is highly sensitive material, but we have legal mechanisms to balance the national security needs with the rights of defendants. I think judges are very conscientious about trying to sort out these issues and balance civil liberties and national security."

While some civil rights advocates, legal experts and members of Congress have said President Bush did not have authority to order eavesdropping by the security agency without warrants, the White House and the Justice Department continued on Tuesday to defend the legality and propriety of the program.

Trent Duffy, a spokesman for the White House, declined to comment in Crawford, Tex., when asked about a report in The New York Times that the security agency had tapped into some of the country's main telephone arteries to conduct broader data-mining operations in the search for terrorists.

But Mr. Duffy said: "This is a limited program. This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner. These are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches."

He added: "The president believes that he has the authority - and he does - under the Constitution to do this limited program. The Congress has been briefed. It is fully in line with the Constitution and also protecting American civil liberties."

Disclosure of the N.S.A. program has already caused ripples in the legal system, with a judge resigning in protest from the Foreign Intelligence Surveillance Court last week. The surveillance court, established by Congress in 1978 to grant warrants in terrorism and espionage cases, wants a briefing from the Bush administration on why it bypassed the court and ordered eavesdropping without warrants.

At the same time, defense lawyers in terrorism cases around the country say they are preparing letters and legal briefs to challenge the N.S.A. program on behalf of their clients, many of them American citizens, and to find out more about how it might have been used. They acknowledge legal hurdles, including the fact that many defendants waived some rights to appeal as part of their plea deals.

Government officials, in defending the value of the security agency's surveillance program, have said in interviews that it played a critical part in at least two cases that led to the convictions of Qaeda associates, Iyman Faris of Ohio, who admitted taking part in a failed plot to bring down the Brooklyn Bridge, and Mohammed Junaid Babar of Queens, who was implicated in a failed plot to bomb British targets.

David B. Smith, a lawyer for Mr. Faris, said he planned to file a motion in part to determine whether information about the surveillance program should have been turned over. Lawyers said they were also considering a civil case against the president, saying that Mr. Faris was the target of an illegal wiretap ordered by Mr. Bush. A lawyer for Mr. Babar declined to comment.

Government officials with knowledge of the program have not ruled out the possibility that it was used in other criminal cases, and a number of defense lawyers said in interviews that circumstantial evidence had led them to question whether the security agency identified their clients through wiretaps.

The first challenge is likely to come in Florida, where lawyers for two men charged with Jose Padilla, who is jailed as an enemy combatant, plan to file a motion as early as next week to determine if the N.S.A. program was used to gain incriminating information on their clients and their suspected ties to Al Qaeda. Kenneth Swartz, one of the lawyers in the case, said, "I think they absolutely have an obligation to tell us" whether the agency was wiretapping the defendants. In a Virginia case, Edward B. MacMahon Jr., a lawyer for Ali al-Timimi, a Muslim scholar in Alexandria who is serving a life sentence for inciting his young followers to wage war against the United States overseas, said the government's explanation of how it came to suspect Mr. Timimi of terrorism ties never added up in his view.

The likely fallout here is clearly that various appeals judges will have to provide a ruling on whether or not the President's use of NSA for unwarranted wiretaps was indeed legal or not, and if they determine that it was not, it's likely that all charges against these defendants will be thrown-out and a retrial using clean evidence required.

Armando at Dailykos has done an excellent series of diaries which analyse the legality of the President's arguments that his ability to call for warrantless NSA searches are indeed legal under Article II of the Constitution and/or the Authorization to use "all neccesary force" which was passed by Congress in the days following Sept 11th.

The Most Dangerous Branch
The . . . infamous Bybee Memo, is not an anomaly in the thinking of the Bush Administration. It is their doctrine:

In a series of opinions examining various legal questions arising after September 11, we have examined the scope of the President's Commander-in-Chief power. . . . Foremost among the objectives committed by the Constitution to [the President's] trust. As Hamilton explained in arguing for the Constitution's adoption, "because the circumstances which may affect the public safety" are "not reducible within certain limits, it must be admitted, as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defense and safety of the community, in any manner essential to its efficacy."

. . . [The Constitution's] sweeping grant vests in the President an unenumerated Executive power . . . The Commander in Chief power and the President's obligation to protect the Nation imply the ancillary powers necessary to their successful exercise.

(emphasis mine.)

In short, when acting as Commander-in-Chief, the President is above the law says the Bush Administration. And so have they argued on everything. Torture. Enemy combatants. And now warrantless surveillance of American citizens.

Most Dangerous Branch Part 2

The Bybee memo, and by extension, the Bush Administration and Republicans, argue that it is the Constitution that grants the President these powers. Of course they also have argued that FISA empowers the Bush Administration to carry out the warrantless surveillance that Bush admitted and defiantly embraced yesterday in his weekly radio address. But this is nonsense - simply dishonest, as Glenn Greenwald and others have demonstrated.<> And the Bybee memo, and likely the Yoo memo, that provided the legal justification for the warrantless surveillance, also rely on dishonesty about the Constitution and about Alexander Hamilton and the Federalist Papers. For example, the Bybee memo states that:

The President's constitutional power to protect the security of the United States and the lives and saftey of its people must be understood in the light of the Founders' intention to create a federal government "cloathed with all the powers requisite to the complete execution of this trust." The Federalist No. 23.

But what does Federalist 23 actually say?

THE necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union, is the point at the examination of which we are now arrived.

This inquiry will naturally divide itself into three branches the objects to be provided for by the federal government, the quantity of power necessary to the accomplishment of those objects, the persons upon whom that power ought to operate. Its distribution and organization will more properly claim our attention under the succeeding head.

The lie of Bybee and Yoo is obvious. Federalist 23 is not speaking of Presidential power. It is speaking of the power granted the federal government. To cite Federalist 23 as support for a claim of Presidential power over the Congress and the Courts is to flat out lie.

Nonesense from Justice on Warrantless Surveilance

The Justice Department has issued an absurd defense of President Bush's authorization of warrantless electronic surveillance. As I have stated before, in the end, the argument necessarily boils down to arguing that the President, when acting as Commander in Chief, has unchecked and unconditioned power. Rather than rehash my previous arguments, I want to concentrate on the President's argument that the September 18, 2001 Congressional Authorization to Use Force provided statutory authority for warrantless surveillance outside of the FISA process. Justice argues that:

Section 2511(2) of Title 18 provides . . . that . . . FISA and two chapter of Title 18 "shall be the exclusive means by which electronic surveillance . . . may be conducted." Section 109 of FISA . . . makes it unlawful to conduct electronic surveillance, "except as authorized by statute." . . . By expressly and broadly excepting from its prohibition electronic surveillance authorized by statute, Section 109 of FISA permits an exception to the procedures of FISA. . . . The AUMF satisfies Section 109's requirement of statutory authorization of electronic surveillance . . .

Could that possibly be correct? No. Let's consider first what Section 109 actually says:

Section 1809. Criminal sanctions

(a) Prohibited activities

A person is guilty of an offense if he intentionally -

(1) engages in electronic surveillance under color of law except as authorized by statute; or (2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not
authorized by statute.

(b) Defense

It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.

(c) Penalties

An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both. . . .

So the Justice Department is arguing that a section of FISA that declares unlawful domestic electronic surveillance a crime is a Congressional act authorizing electronic surveillance? That is singular. It seems to me that, at best, this argument can posit that domestic electronic surveillance pursued under the AUMF, assuming the AUMF did authorize such actions, is not a criminal act under Section 109 of FISA. It certainly can not be construed as authorizing such domestic electronic surveillance outside of FISA procedures. It provides for criminal penalties, not authorization for actions by the President.

The proper interpretation, assuming the AUMF did authorize domestic electronic surveillance, is that in addition to the domestic electronic surveillance authorized by FISA, pursuant to FISA procedures, the AUMF provided an alternate authorization for domestic electronic surveillance, but also pursuant to FISA procedures.

The best evidence of this is cited in the Justice Department letter - 18 U.S.C. Section 2511:

Except as otherwise specifically provided in this chapter any person who--

(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication . . . shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).

There is no escaping this conclusion. This section states in unequivocal terms that unless the interception complies with the chapter, it is a crime. How to comply?

The criminal wiretap statute and FISA "shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." [18 U.S.C. § 2518(f)]
Can Justice escape this logic?

Justice says:

[U]nder established principles of statutory construction the AUMF and FISA must be construed in harmony to avoid any conflict . . .

I agree. But Justice continues the passage in dishonest fashion:

. . . between FISA and the President's Article II authority as Commander in Chief.

Come again? The conflict to be avoided is between the law duly enacted by Congress, FISA, and the Bush claim of unfettered Commander in Chief power? Say what? No, the conflict to be avoided is between AUMF and FISA! Justice cites a case, Zadvydas v. Davis. I presume Justice is referencing this:

"[I]t is a cardinal principle" of statutory interpretation, however, that when an Act of Congress raises "a serious doubt" as to its constitutionality, "this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."

So what Justice is saying is that if FISA is interpreted as limiting the President's Article II Commander in Chief power, then it would be unconstitutional. Thus, it should be construed as permitting Bush's ordering of warrantless domestic electronic surveillance. And here we arrive again at the questions that can not be avoided -- Is FISA unconstitutional? Does the President have plenary powers when acting as Commander in Chief?

Like Cass Sunstein, Justice cites Hamdi v. Rumsfeld to argue that the Supreme Court recognized the AUMF as authorizing the President to invoke his Commander in Chief power. Like Sunstein, Justice ignores that the Hamdi Court also restricted the President's Commander in Chief power, making it subject to Congress' procedural scheme for processing petitions for writ of habeas corpus. So again this disingenuous argument is raised, and needs debunking:

It is a bitter irony that while asserting plenary power as Commander in Chief and defending the violations of FISA by President Bush as supported by the Article II powers accorded the President, at the same time Republicans have played Chicken Little regarding the possible expiration of the Patriot Act and the potential enactment of the ban on torture. These two lines of argument are irreconcilable. What need for the Patriot Act when the President can do whatever he pleases? What harm can a ban on torture cause when the President can violate federal law as he pleases?

Of course this is all nonsense. The arguments regarding the War Powers have always centered on whether the President has the power to wage war without Congressional authorization. Emblematic of this dispute is the War Powers Resolution. And that debate is entirely about who has the power to initiate hostilities. Once hostilities are properly commenced there is no dispute that the President is the sole Commander in Chief.

But never before has a President argued that this power as Commander in Chief provides the President carte blanche to violate federal law. Indeed, in Hamdi, the idea is treated as beneath consideration as the Court does not even address the idea that the President, acting as Commander in Chief, can abolish the right to a writ of habeas corpus, as that power resides SOLELY with the Congress:

All agree that, absent suspension, remains available to all persons detained in the United States. U.S. Const., Art. 1, Section 9 . . . Only in the rarest circumstances has the Congress seen fit to suspend the Writ. . . . At all other times, it remains a critical check on the Executive, ensuring that it does not detain individuals, except in accordance to law.

Well maybe it is only Constitutional rights that check the power of the President as Commander in Chief? Well no. The Hamdi court said:

It is undisputed that Hamdi is properly before an Article III court under 28 U.S.C. Section 2241. Further all agree the Section 2241 and its companion provisions provide at least the outline of a skeletal procedure to be afforded a petitioner for habeas review.

Implicitly, the Hamdi Court rejects the notion that the President, acting as Commander in Chief has plenary power, unchecked by federal law or the Constitution. And Hamdi involved an act, as the Court expressly acknowledged, that is a traditional and recognized military function -- the detention of enemy combatants in a war zone. In this case, Hamdi was captured in Afghanistan. Bush's deliberate violations of FISA involves actions which clearly do NOT fall into the realm of traditional military activity. Electronic surveillance, wiretapping and other similar activities IN THE UNITED STATES are far removed from the capture of enemy combatants in Afghanistan.

Thus, if the President's actions in Hamdi are subject to Congressional acts and judicial review, it is unfathomable that his violations of FISA somehow escape these checks.

It is particularly interesting how the Bush Administration and Republicans in Congress were able to pass a law restricting the right to habeas corpus without arguing that the President had unfettered Commander in Chief power in response to Hamdi.

If they could do it for the traditional military act of detaining enemy combatants, why not with FISA? Why did the President of the United States choose instead to deliberately violate federal law? And why do some legal commentators choose to be apologists for this nefarious act?

....
Why indeed? Once you walk all the way through the Justice Dept argument, it becomes clear that the President is essentially laying claim to being - simply put - above the law. He has contorted his Constitutional leeway to decide not to prosecute certain laws passed by Congress as inherent authority not to abide by those laws himself. Then you have Tom Daschle put the hammer directly on the head of the nail by pointing out that Congress specifically rejected the Presidents attempt to gain War Powers within the U.S. - yet this President continues to claim that they gave him power?

On Page A4 of Washington Post
WASHINGTON--The Bush administration requested, and Congress rejected, war-making authority ``in the United States'' in negotiations over the joint resolution passed days after the terrorist attacks of Sept. 11, 2001, according to an opinion article by former Senate majority leader Tom Daschle, D-S.D., in Friday's Washington Post. Daschle's disclosure challenges a central legal argument offered by the White House in defense of the National Security Agency's warrantless wiretapping of U.S. citizens and permanent residents. It suggests that Congress refused explicitly to grant authority that the Bush administration now asserts is implicit in the resolution.
All of these arguements and issues will become relevant as the various defense attorneys put forth their motions regarding the use of NSA surveilance information and the Presidential by-pass of FISA, and I think - looking at the entire issue - that most of these motions have a strong likelyhood of being granted, and the evidence (as well as convictions) rendered null and void.

Yeah, that's a great way to combat terrorism -- set them all free as a result of governmental ineptitude.

Vyan

Sunday, December 25

Debunking the Top 12 Domestic Spying Myths

Top 12 Domestic Spying Myths from Media Matters:

1: Timeliness necessitated bypassing the FISA court

Various media outlets have uncritically relayed President Bush's claim that the administration's warrantless domestic surveillance is justified because "we must be able to act fast ... so we can prevent new [terrorist] attacks." But these reports have ignored emergency provisions in the current law governing such surveillance -- FISA -- that allow the administration to apply to the Foreign Intelligence Surveillance Court for a search warrant up to 72 hours after the government begins monitoring suspects' phone conversations. The existence of this 72-hour window debunks the argument that the administration had to bypass the law to avoid delay in obtaining a warrant. The fact that the administration never retroactively sought a warrant from the FISA court for its surveillance activities suggests that it was not the need to act quickly that prevented the administration from complying with the FISA statute, but, rather, the fear of being denied the warrant.

2: Congress was adequately informed of -- and approved -- the administration's actions

Conservatives have sought to defend the secret spying operation by falsely suggesting that the Bush administration adequately informed Congress of its actions and that Congress raised no objections. For example, on the December 19 broadcast of Westwood One's The Radio Factor, host Bill O'Reilly claimed that the NSA's domestic surveillance "wasn't a secret program" because "the Bush administration did keep key congressional people informed they were doing this." The claim was also featured in a December 21 press release by the Republican National Committee (RNC).

In fact, both Republicans and Democrats in Congress have said that the administration likely did not inform them of the operation to the extent required by the National Security Act of 1947, as amended in 2001. Members of both parties have also said that the objections they did have were ignored by the administration and couldn't be aired because the program's existence was highly classified.

As The New York Times reported on December 21, Rep. Peter Hoekstra (R-MI), former Sen. Bob Graham (D-FL), Senate Intelligence Committee ranking member John D. Rockefeller IV (D-WV), and Senate Democratic Leader Harry Reid (D-NV) have stated that they did not receive written reports from the White House on the surveillance operation, as required by the National Security Act:

The demand for written reports was added to the National Security Act of 1947 by Congress in 2001, as part of an effort to compel the executive branch to provide more specificity and clarity in its briefings about continuing activities. President Bush signed the measure into law on Dec. 28, 2001, but only after raising an objection to the new provision, with the stipulation that he would interpret it "in a manner consistent with the president's constitutional authority" to withhold information for national-security or foreign-policy reasons.

[...]

[I]n interviews, Mr. Hoekstra, Mr. Graham and aides to Mr. Rockefeller and Mr. Reid all said they understood that while the briefings provided by [Vice President Dick] Cheney might have been accompanied by charts, they did not constitute written reports. The 2001 addition to the law requires that such reports always be in written form, and include a concise statement of facts and explanation of an activity's significance.

Further, Rockefeller recently released a copy of a letter he wrote to Cheney on July 17, 2003, raising objections to the secret surveillance operation. As the Times reported on December 20, Rockefeller said on December 19 that his concerns "were never addressed, and I was prohibited from sharing my views with my colleagues" because the briefings were classified. The December 21 Times report noted that House Democratic Leader Nancy Pelosi (D-CA) said she too sent a letter to the Bush administration objecting to the secret surveillance operation, and that Graham alleged that he was never informed "that the program would involve eavesdropping on American citizens."

3: Warrantless searches of Americans are legal under the 1978 Foreign Intelligence Surveillance Act

Conservatives such as nationally syndicated radio host Rush Limbaugh and American Cause president Bay Buchanan have defended the administration by falsely claiming that the administration's authorization of domestic surveillance by the NSA without warrants is legal under FISA. In fact, FISA, which was enacted in 1978, contains provisions that limit such surveillance to communications "exclusively between foreign powers," specifically stating that the president may authorize electronic surveillance without a court order only if there is "no substantial likelihood" that the communications of "a United States person" -- a U.S. citizen or anyone else legally in the United States -- will be intercepted. Such provisions do not allow for the Bush administration's authorization of domestic surveillance of communications between persons inside the United States and parties outside the country.

FISA also allows the president and the attorney general to conduct surveillance without a court order for the purpose of gathering "foreign intelligence information" for "a period" no more than 15 days "following a declaration of war by the Congress." This provision does not permit Bush's conduct either, as he acknowledged that he had reauthorized the program more than 30 times since 2001, and said that the program is "reviewed approximately every 45 days."

4: Clinton, Carter also authorized warrantless searches of U.S. citizens

Another tactic conservatives have used to defend the Bush administration has been to claim that it is not unusual for a president to authorize secret surveillance of U.S. citizens without a court order, asserting that Democratic presidents have also done so. For example, on the December 21 edition of Fox News's Special Report, host Brit Hume claimed that former presidents Jimmy Carter and Bill Clinton issued executive orders "to perform wiretaps and searches of American citizens without a warrant."

But as the ThinkProgress weblog noted on December 20, executive orders on the topic by Clinton and Carter were merely explaining the rules established by FISA, which do not allow for warrantless searches on "United States persons." Subsequent reports by NBC chief foreign affairs correspondent Andrea Mitchell and The Washington Post also debunked the conservative talking point while noting that the claim was highlighted in the December 21 RNC press release.

From ThinkProgress, which documented how internet gossip Matt Drudge selectively cited from the Clinton and Carter executive orders to falsely suggest they authorized secret surveillance of U.S. citizens without court-obtained warrants:

What Drudge says:

Clinton, February 9, 1995: "The Attorney General is authorized to approve physical searches, without a court order"

What Clinton actually signed:

Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign Intelligence Surveillance] Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

That section requires the Attorney General to certify is the search will not involve "the premises, information, material, or property of a United States person." That means U.S. citizens or anyone inside of the United States.

The entire controversy about Bush's program is that, for the first time ever, allows warrantless surveillance of U.S. citizens and other people inside of the United States. Clinton's 1995 executive order did not authorize that.

Drudge pulls the same trick with Carter.

What Drudge says:

Jimmy Carter Signed Executive Order on May 23, 1979: "Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order."

What Carter's executive order actually says:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

What the Attorney General has to certify under that section is that the surveillance will not contain "the contents of any communication to which a United States person is a party." So again, no U.S. persons are involved.

5: Only Democrats are concerned about the Bush administration's secret surveillance

As part of a larger problem of imprecise reporting, a number of media reports have falsely suggested that the debate over the Bush administration's secret surveillance of domestic communications is purely a partisan dispute between Democrats and Republicans. For example, on the December 22 broadcast of NBC's Today, Newsweek chief political correspondent Howard Fineman said: "[W]hile the Bill of Rights is something we all cherish, I think the Democrats politically need to be careful, because the president's going to argue, as he already is, that post-9-11, strong surveillance measures are required."

In fact, several prominent Republicans have expressed concern that the Bush administration's actions might violate the law or otherwise be objectionable. On December 18, Sen. Lindsey O. Graham (R-SC) said that "I don't know of any legal basis to go around" the requirement that the White House formally apply to the FISA court for a warrant to engage in domestic surveillance, while Sen. John McCain (R-AZ) said it is a "legitimate question" to ask why "the president chose not to use FISA." After Attorney General Alberto R. Gonzales cited executive authority in defending the legality of the administration's actions, Sen. Arlen Specter (R-PA) -- who is in charge of organizing an investigation into the issue -- responded that he was "skeptical of the attorney general's citation of authority."

6: Debate is between those supporting civil liberties and those seeking to prevent terrorism

Many media figures have created a false dichotomy by framing the debate over the Bush administration's actions as one between those who support protecting civil liberties and those who favor protecting America from another deadly terrorist attack. For example, NBC host Katie Couric claimed the debate amounted to "legal analysts and constitutional scholars versus Americans, who say civil liberties are important, but we don't want another September 11," while NBC's Mitchell wondered whether Americans should be more concerned about "[a] terror attack or someone going into their hard drive and intercepting their emails."

Such statements set up exactly the false debate put forth by Cheney and Bush to defend the administration's actions, as Mitchell subsequently noted on the December 21 edition of MSNBC's Hardball with Chris Matthews:

MITCHELL: [T]hey set up successfully, the White House, this premise of you're either for security and protecting the American people post-9-11 or you're worried about surveillance. This either-or proposition, when a lot of people say that's a false choice.

7: Bin Laden phone leak demonstrates how leak of spy operation could damage national security

Several media outlets have uncritically cited a 1998 Washington Times report on Osama bin Laden as an example of how leaking information about the Bush administration's domestic spying operation could harm national security. The media have falsely suggested that the Washington Times report revealed that the United States was monitoring bin Laden's conversations on a satellite phone and that bin Laden quickly ceased using the phone after the report surfaced. In fact, the article only noted that bin Laden was using a satellite phone, not that the U.S. was monitoring it; according to a December 22 report by The Washington Post, bin Laden apparently had stopped using the phone by the time any newspaper reported that the U.S. had been monitoring his conversations. Further, the Post noted that another report on bin Laden's phone -- that relied on the Taliban as its source -- preceded the Washington Times article by nearly two years, while another report predating the Times article relied on bin Laden himself.

One example of media misrepresenting the bin Laden incident occurred on the December 17 edition of CNN Live Saturday, when correspondent Brian Todd reported:

TODD: We asked one expert how important it is for the NSA and its methods to be kept so secret. He cited one breach as an example, the damage done when it was made public that intelligence agencies were monitoring Osama bin Laden's cell phone calls.

In a December 19 press conference, Bush also highlighted the purported bin Laden leak as an example of why leaking information about the domestic spying operation was a "shameful act" that is "helping the enemy":

QUESTION: Thank you, sir. Are you going to order a leaks investigation into the disclosure of the NSA surveillance program?

[...]

BUSH: My personal opinion is it was a shameful act, for someone to disclose this very important program in time of war.

The fact that we're discussing this program is helping the enemy.

[...]

BUSH: Let me give you an example about my concerns about letting the enemy know what may or may not be happening.

In the late 1990s, our government was following Osama bin Laden because he was using a certain type of telephone. And then the fact that we were following Osama bin Laden because he was using a certain type of telephone made it into the press as the result of a leak.

And guess what happened. Osama bin Laden changed his behavior. He began to change how he communicated.

But as the December 22 Post report documented, the August 21, 1998, Washington Times article in question "never said that the United States was listening in on bin Laden"; the article merely reported that bin Laden "keeps in touch with the world via computers and satellite phones." The Post also noted that the Washington Times report was not the first article to note bin Laden's use of a satellite phone: A December 16, 1996, Time magazine report cited the Taliban in reporting that bin Laden "uses satellite phones to contact fellow Islamic militants in Europe, the Middle East and Africa." And the day before the Times article, CNN terrorism analyst Peter Bergen cited a 1997 interview he conducted with bin Laden to report that bin Laden "communicates by satellite phone." Finally, the Post noted that it was not until "after bin Laden apparently stopped using his phone" that the Los Angeles Times first reported on September 7, 1998, that the U.S. had been monitoring his phone conversations. As a follow-up Post article on December 23 noted, bin Laden stopped using the phone "within days of a cruise missile attack on his training camps in Afghanistan."

The false claim that the Washington Times article was responsible for causing bin Laden to stop using the satellite phone apparently originated in the 9-11 Commission report, which asserted: "Worst of all, al Qaeda's senior leadership had stopped using a particular means of communication almost immediately after a leak to the Washington Times."

8: Gorelick testimony proved Clinton asserted "the same authority" as Bush

In a December 20 article headlined "Clinton Claimed Authority to Order No-Warrant Searches," National Review White House correspondent Byron York drew attention to then-Deputy Attorney General Jamie Gorelick's July 14, 1994, testimony before the House Intelligence Committee, in which she stated that the president has "inherent authority to conduct warrantless physical searches." While York's article did not explicitly draw a parallel between the Clinton administration's 1994 policy regarding such searches and the current Bush administration controversy regarding unwarranted domestic surveillance, conservative media figures such as National Review editor Rich Lowry and syndicated columnist Charles Krauthammer have done just that.

But Gorelick's testimony does not prove that the Clinton administration believed it had the authority to bypass FISA regulations, as the Bush administration has argued in the case of the NSA's domestic wiretapping program.

Unlike electronic surveillance, the "physical searches" to which Gorelick referred were not restricted by FISA at the time of her 1994 testimony. Therefore, by asserting the authority to conduct physical searches for foreign intelligence purposes, the Clinton administration was not asserting that it did not have to comply with FISA. In October 1994, Congress passed legislation -- with Clinton's support -- to require FISA warrants for physical searches. Thereafter, the Clinton administration never argued that any "inherent authority" pre-empted FISA. To the contrary, in February 1995 Clinton issued an executive order that implemented the new FISA requirements on physical searches.

By contrast, the Bush administration has argued that it has the authority to authorize surveillance of domestic communications without court orders, despite FISA's clear and longstanding restrictions on warrantless electronic eavesdropping.

9: Aldrich Ames investigation is example of Clinton administration bypassing FISA regulations

Some conservatives have specifically cited the joint CIA/FBI investigation of Aldrich Ames, a CIA analyst ultimately convicted of espionage, as an example of Clinton invoking executive authority to overstep FISA by authorizing a physical search of a suspect without a court order. For example, on the December 21 edition of CNN's The Situation Room, Republican attorney Victoria Toensing falsely claimed that the Clinton administration did "carry out that authority" to bypass the FISA requirements "when they went into Aldrich Ames's house without a warrant."

But as with Gorelick's testimony, the Ames investigation took place before the 1995 FISA amendment requiring warrants for physical searches. In other words, in conducting these searches, the Clinton administration did not bypass FISA because FISA did not address physical searches. Further, there is ample evidence that the Clinton administration complied with the FISA requirements that did exist on wiretapping: U.S. District Court Judge Royce C. Lamberth, who previously served on the FISA court, has noted the "key role" the court played in the Ames case to "authorize physical entries to plant eavesdropping devices"; and former deputy assistant attorney general Mark M. Richard established that "the Attorney General was asked to sign as many as nine certifications to the FISA court in support of applications for FISA surveillance" during the Ames investigation.

10: Clinton administration conducted domestic spying

Conservative media figures have claimed that during the Clinton administration, the NSA used a program known as Echelon to monitor the domestic communications of United States citizens without a warrant. While most have offered no evidence to support this assertion, NewsMax, a right-wing news website, cited a February 27, 2000, CBS News 60 Minutes report that correspondent Steve Kroft introduced by asserting: "If you made a phone call today or sent an email to a friend, there's a good chance what you said or wrote was captured and screened by the country's largest intelligence agency. The top-secret Global Surveillance Network is called Echelon, and it's run by the National Security Agency." NewsMax used the 60 Minutes segment to call into question The New York Times' December 16 report that Bush's "decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad."

On December 19, Limbaugh read the NewsMax article on his nationally syndicated radio show. Limbaugh told listeners that Bush's surveillance program "started in previous administrations. You've heard of the NSA massive computer-gathering program called Echelon. 60 Minutes did a story on this in February of 2000. Bill Clinton still in office." The Echelon claim has also been repeated by Wall Street Journal columnist John Fund and radio host G. Gordon Liddy.

The 60 Minutes report appears to have been based largely on anecdotal evidence provided by a former Canadian intelligence agent and a former intelligence employee who worked at Menwith Hill, the American spy station in Great Britain, in 1979. In addition, the report contained footage of an assertion by then-Rep. Bob Barr (R-GA) that "Project Echelon engages in the interception of literally millions of communications involving United States citizens." But the report also included comments from then-chairman of the House Permanent Select Committee on Intelligence Rep. Porter Goss (R-FL), who, Kroft reported, "still believes ... that the NSA does not eavesdrop on innocent American citizens." Kroft asked Goss: "[H]ow can you be sure that no one is listening to those conversations?" Goss responded, "We do have methods for that, and I am relatively sure that those procedures are working very well."

While Goss did not say in his 60 Minutes interview that the NSA does not spy on the domestic communications of Americans without a warrant, then-director of central intelligence George J. Tenet and then-National Security Agency director Lt. Gen. Michael V. Hayden said exactly that to Goss's committee less than two months later. As ThinkProgress has noted, Tenet testified before the intelligence committee on April 12, 2000. Denying allegations that Echelon was used to spy on Americans in the United States without a warrant, Tenet stated: "We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department." In the same hearing, Hayden testified: "If [an] American person is in the United States of America, I must have a court order before I initiate any collection [of communications] against him or her."

Hayden also denied the "urban myth" that the NSA "ask[s] others to do on our behalf that which we cannot do for ourselves." This appears to have been a response to the allegation -- noted by 60 Minutes -- that the NSA was exchanging information with foreign intelligence services that did monitor the domestic communications of Americans. Hayden stated: "By executive order, it is illegal for us to ask others to do what we cannot do ourselves, and we don't do it."

Tenet and Hayden's congressional testimony leaves two possibilities: Either they were not telling Congress the truth, or the claim that the NSA used the Echelon program to monitor the domestic communications of Americans is incorrect.

Hayden now serves as principal deputy director of national intelligence and has vigorously defended Bush's warrantless domestic surveillance program. At a December 19 press conference, he acknowledged that Bush's program goes beyond what is authorized under FISA. Hayden described it as "a more -- I'll use the word 'aggressive' program than would be traditionally available under FISA."

11: Moussaoui case proved that FISA probable-cause standard impedes terrorism probes

Some of the administration's supporters have attempted to defend the domestic surveillance program by pointing to a purported situation where the cumbersome FISA regulations prevented crucial intelligence gathering. In a December 20 Washington Post op-ed, Weekly Standard editor William Kristol and American Enterprise Institute resident scholar Gary Schmitt cited the 2001 case of Zacarias Moussaoui as evidence that the "difficulty with FISA is the standard it imposes for obtaining a warrant aimed at" a domestic target. Kristol and Schmitt claimed that the evidence the FBI had compiled against Moussaoui did not "rise to the level of probable cause under FISA":

Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI's attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don't rise to the level of probable cause under FISA.

But contrary to Kristol and Schmitt's argument that the probable-cause standard established by FISA was too high in this case, a 2003 Senate Judiciary Committee report found that the FBI's evidence against Moussaoui was, in fact, sufficient. The report instead asserted that FBI personnel who handled the warrant application "failed miserably" in their efforts to convince FBI attorneys that the threshold for establishing probable cause that Moussaoui was an "agent of a foreign power" (and therefore subject to surveillance pursuant to FISA) had been met .

The bipartisan report, compiled by Sens. Patrick Leahy (D-VT), Charles Grassley (R-IA), and Arlen Specter (R-PA), examined in detail the FBI's handling of the Moussaoui FISA application, which was delivered to FBI headquarters by the Minneapolis field office, handled by a supervisory special agent (SSA) there, and ultimately rejected as insufficient by FBI attorneys. The senators determined that the SSA in charge of the application provided the attorneys with a "truncated" version of the evidence compiled by the Minneapolis agents and failed to search for additional "information relevant to the application." Moreover, the report found that both the SSA and the attorneys had employed an "unnecessarily high standard" for probable cause -- one that exceeded the legal requirements set out by FISA:

In our view, the FBI applied too cramped an interpretation of probable cause and "agent of a foreign power" in making the determination of whether Moussaoui was an agent of a foreign power. FBI Headquarters personnel in charge of reviewing this application focused too much on establishing a nexus between Moussaoui and a "recognized" group, which is not legally required. Without going into the actual evidence in the Moussaoui case, there appears to have been sufficient evidence in the possession of the FBI which satisfied the FISA requirements for the Moussaoui application.

Despite this report's having established that the FBI's misunderstanding of the FISA requirements resulted in the rejection of the Moussaoui application, a December 23 New York Times article reported without challenge the FBI's argument that FISA's "cumbersome submission requirements" were to blame:

Some agents complained that the FISA court's cumbersome submission requirements and insistence on strict adherence to the law had contributed to the impression that the court itself was an obstacle to aggressive investigation of terror cases. As an example, these agents suggested F.B.I. lawyers did not seek a FISA warrant in the case of Zacarias Moussaoui, who was arrested shortly before the 2001 attacks, in part because they believed the court would reject it.

12: A 2002 FISA review court opinion makes clear that Bush acted legally

Recently, conservative media figures have misleadingly cited a 2002 opinion by the Foreign Intelligence Surveillance Court of Review (FISCR) to claim that the president could authorize warrantless domestic electronic surveillance despite FISA's restrictions. They have pointed to the court's reiteration of the president's inherent constitutional authority to conduct foreign intelligence surveillance without a warrant, which FISA cannot encroach upon. Therefore, they argue, Bush could authorize NSA's warrantless monitoring of "U.S. persons," regardless of FISA's restrictions.

But, as Media Matters documented, this argument is a red herring. Their citation of the decision to support the contention that Congress cannot encroach upon the president's constitutional authority ignores constitutional limits on that authority. Of course a law passed in 1978 would not trump the Constitution -- the supreme law of the land. The question is the scope of that presidential authority and whether it extends to acts that would violate the provisions of FISA protecting U.S. persons from excessive government intrusion. Contrary to these media figures' suggestions, the 2002 FISCR opinion does not address that question.

Regardless, media figures have asserted that the FISCR opinion supports the contention that Bush is not bound by FISA.

Most prominent among these has been National Review White House correspondent Byron York, who in a post on the National Review Online's weblog, The Corner, titled "READ THIS IMPORTANT ARTICLE," promoted a Chicago Tribune op-ed by John Schmidt, an associate attorney general under Clinton, supporting the legality of the administration's surveillance program. Schmidt wrote:

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant. In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

[...]

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

The Drudge Report website also cited Schmidt's Tribune op-ed with a link captioned "Associate attorney general under Clinton: President had legal authority to OK taps ..."

Similarly, a December 20 Wall Street Journal editorial asserted:

FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed.

The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that, "We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

Fox News chief Washington correspondent Jim Angle made a similar claim on the December 20 edition of Fox News' Special Report with Brit Hume, stating, "In 2002, [FISA's] own court of review upheld the president's powers and pointed to an appeals court decision, noting that it, as did all other courts to have decided the issue, held that the president did have the inherent authority to conduct warrantless searches to obtain foreign intelligence information."

Others who have repeated this claim in the media include Bradford Berenson, a former associate White House counsel, who made the assertion on the December 21 broadcast of PBS' The NewsHour with Jim Lehrer. Berenson worked in the Bush White House from 2001 to 2003, and after the September 11 attacks "played a significant role in the executive branch's counterterrorism response."