Skip to comments.'NY Times' Hits Back after Bush Criticizes Story
Posted on 12/17/2005 10:08:23 PM PST by Pikamax
'NY Times' Hits Back after Bush Criticizes Story
By E&P Staff
Published: December 17, 2005 10:00 PM ET
NEW YORK Refusing to back down under criticism from the White House, The New York Times in a Sunday editorial calls for Congress to act on its revelations about a secret spying program against Americans.
"President Bush defended the program yesterday, saying it was saving lives, hotly insisting that he was working within the Constitution and the law, and denouncing The Times for disclosing the program's existence," the editorial declares. "We don't know if he was right on the first count; this White House has cried wolf so many times on the urgency of national security threats that it has lost all credibility. But we have learned the hard way that Mr. Bush's team cannot be trusted to find the boundaries of the law, much less respect them.
"Mr. Bush said he would not retract his secret directive or halt the illegal spying, so Congress should find a way to force him to do it. Perhaps the Congressional leaders who were told about the program could get the ball rolling."
President Bush on Saturday had criticized the story and the leaks to the media that led to it. A Republican senator later attacked the Times for allegedly endangering lives (see other stories on this site).
In Friday's Times, James Risen and Eric Lichtblau reported that in 2002, President Bush signed a secret executive order to allow spying on American citizens without obtaining a warrant.
"Let's be clear about this: illegal government spying on Americans is a violation of individual liberties, whether conditions are troubled or not," the Times editorial states. "Nobody with a real regard for the rule of law and the Constitution would have difficulty seeing that. The law governing the National Security Agency was written after the Vietnam War because the government had made lists of people it considered national security threats and spied on them. All the same empty points about effective intelligence gathering were offered then, just as they are now, and the Congress, the courts and the American people rejected them."
The FISA Act And The Definition Of 'US Persons'
One of the critical points argued in regard to President Bush's angry pushback on the NSA leak is that his executive order violates the Foreign Intelligence Surveillance Act (FISA). People have the impression that FISA requires warrants from the FISA judge, but that isn't what FISA says at all. In fact, FISA gives the government wide latitude in warrantless surveillance of international communications even when one point originates in the US -- as long as the person in the US does not qualify as a "US person":
(i) United States person means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.
Note that a US person must either be a US citizen or someone lawfully admitted to the US for permanent residence. If someone resides in the US on a visa and not a green card, they do not qualify, nor do they qualify if they get a green card under false pretenses. FISA authorizes warrantless surveillance in its opening chapter:
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that
(A) the electronic surveillance is solely directed at
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney Generals certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.
In fact, the only people who need to make this call are the President and the Attorney General, and it doesn't even make the accidental or tangential exposure of communications with US persons a crime. It only requires that the AG ensure that mitigation procedures have been applied to ensure compliance with FISA. The only way that one can violate this law is if the law gets intentionally violated. In other words, one would have to prove that Bush intentionally ordered the surveillance of a qualifying US person.
Since the targets within the US got identified through intelligence developed through captures of al-Qaeda agents and their equipment, it seems rather unlikely that they had contacts with many US-born American citizens. Most AQ assets enter countries on student visas -- which does not qualify them as a US person under FISA and therefore does not extend them the protection of warrants prior to or during surveillance.
As the New York Times undoubtedly discovered during its research, the NSA probably never broke the law at all, and certainly nothing uncovered in their article indicates any evidence that they did. Neither did President Bush in ordering the NSA to actually follow the law in aggressively pursuing the intelligence leads provided by their capture of terrorists in the field. The only real news that the Times provided is that the US didn't need the 9/11 Commission to tell it to use all the tools at its disposal -- and hence the angry speech given by the President this morning.
I don't blame him a bit for his anger. I suspect that many will be angry with the Times by Monday -- mostly for suckering them into foolish knee-jerk reactions.
They have their little feelings hurt huh??
They can dish it out, but they can't take it...LOL
The Congress was briefed at least 12 times since this operation was started, and the operation is still underway as we chat....This is the mother of all NON STORIES
hmmmm. I wonder why I didn't see similar outrage on Hillary collecting FBI records?
The intercepts described in the article are not illegal, you self-righteous ass.
Maybe we can just roll them into the treason investigation that'll center around some Rats on Capitol Hill.
Has the NY Times proved that what the President has done is illegal? Nope- and yet, once again, they lie to Americans claiming that it was.
LOL! The NY Slimes is always good for a predictable chuckle.
Doesn't the position of the NY Times mean any congressman who knew of this is complicit in breaking the law?
The NYT bathhouse boys can't stand real American men!
OK, this was all pre-planned. They are going for impeachment
As well as all of the legal eagles at the DOJ, NSA, and CIA as well... The left is beyond desperate, they are hysterical
They have accepted illegally obtained information, they have harmed national security, they live in the state hardest hit by terror attacks, and the one that will most likely be struck again at any time.
No, I think they are just trying to overshadown the recent Iraqi elections. Once this story peters out and they look like idiots they can safely return to their "Bush lied, people died" strategy.
"OK, this was all pre-planned. They are going for impeachment"
Isn't it interesting that John Kerry brought up 'Impeachment' of President Bush the day before this bogus story broke. I hope President Bush comes out swinging tomorrow!
Sorry, but the Schedule of Emanations and Penumbras guarantees all Americans access to the Truth (defined as "enemy propaganda") and protection from Lies (defined as "statements that reflect reality but contravene the Truth [enemy propaganda] or oppose the advance of Liberalism").
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