Ex-Clinton official Schmidt's defense of
warrantless wiretaps, cited by York and Angle, rife with inaccuracy, empty
arguments, and unwarranted credulity
Media Matters
December 22, 2005
In a December 21 Chicago Tribune op-ed, John Schmidt, former associate
attorney general under President Clinton, argued that President Bush's decision
to authorize domestic surveillance without pursuing court orders "is consistent
with court decisions and with the positions of the Justice Department under
prior presidents." In defense of his argument, however, Schmidt falsely claimed
that Jamie Gorelick, as deputy attorney general under Clinton, testified that
the president has the authority to "go beyond" the terms of the Foreign
Intelligence Surveillance Act (FISA). Schmidt also offered a number of empty
and irrelevant arguments in defense of Bush.
Scmidt's op-ed has been cited by various media conservatives as a defense of
Bush's actions. National Review White House correspondent Byron York excerpted
Schmidt's op-ed in a December 21 entry on National Review Online's weblog, The
Corner, titled "READ THIS IMPORTANT ARTICLE." On the December 21 edition of Fox
News' Special Report with Brit Hume, Fox News chief Washington correspondent
Jim Angle reported: "But yet another former official in the Clinton Justice
Department wrote in the Chicago Tribune today that President Bush's actions are
consistent with a number of court decisions as well as the position of the
Justice Department under several prior presidents."
After The New York Times reported on December 16 that Bush authorized the
National Security Agency to "eavesdrop on Americans and others inside the
United States to search for evidence of terrorist activity without the
court-approved warrants ordinarily required for domestic spying," Bush publicly
acknowledged the existence of the warrantless surveillance program and the fact
that he had reauthorized it more than 30 times since 2001.
Schmidt's claim about Gorelick testimony is false
FISA, passed in 1978, requires that the Foreign Intelligence Surveillance
Court authorize any domestic surveillance. In his Tribune op-ed, Schmidt wrote:
"Every president since FISA's passage has asserted that he retained inherent
power to go beyond the act's terms." As evidence, he quoted Gorelick's 1994
testimony before the Senate Intelligence Committee, in which she said: "[T]he
Department of Justice believes, and the case law supports, that the president
has the inherent authority to conduct warrantless physical searches for foreign
intelligence purposes." But as Media Matters for America noted, physical
searches were not governed by FISA at the time Gorelick made that statement. So
her argument was not that the president could go beyond FISA, as Schmidt wrote,
but that FISA did not then apply to physical searches. FISA was amended in 1995
to encompass physical searches. Moreover, Gorelick at the time stated her
support for legislation requiring FISA warrants for physical searches.
Schmidt obscured NSA program's "targeting" to defend Bush
Schmidt went on to write:
FISA contains a provision making it illegal to "engage in electronic
surveillance under color of law except as authorized by statute." The term
"electronic surveillance" is defined to exclude interception outside the U.S.,
as done by the NSA, unless there is interception of a communication "sent by or
intended to be received by a particular, known United States person" (a U.S.
citizen or permanent resident) and the communication is intercepted by
"intentionally targeting that United States person." The cryptic descriptions
of the NSA program leave unclear whether it involves targeting of identified
U.S. citizens. If the surveillance is based upon other kinds of evidence, it
would fall outside what a FISA court could authorize and also outside the act's
prohibition on electronic surveillance.
Schmidt's assertion that it is "unclear" whether the NSA surveillance is
specifically targeting citizens ignores Bush's own characterization of his
actions in authorizing the domestic spying. In a December 19 press conference,
Bush said the calls being monitored under the NSA program "are from outside the
country to in the country, or vice versa." He made no distinction between "a
United States person," and someone in the country who lacks legal immigration
status. If Bush administration officials could say that only undocumented
immigrants were targeted, that would likely be their first line of defense.
Schmidt used the administration's "cryptic descriptions of the NSA program" in
Bush's defense, when in fact the point that their descriptions have been
"cryptic" merely highlights the administration's efforts to claim -- without
specificity -- its legal authority to engage in these actions. Moreover,
Schmidt ignored the provision within FISA (50 USC 1802) that specifically
addresses electronic surveillance without a warrant, which requires the
attorney general to certify in writing and under oath that "there is no
substantial likelihood that the surveillance will acquire the contents of any
communication to which a United States person is a party." The administration
has thus far not produced such certification from Attorney General Alberto R.
Gonzales, and Bush's characterization of the program suggests that such
certification would be impossible to make.
Schmidt's assertion also ignores specific news accounts indicating that the
NSA program targeted at least one legalized alien. The December 16 New York
Times article reported that "[s]everal officials said the eavesdropping program
had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized
citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring
down the Brooklyn Bridge with blowtorches." As Schmidt noted, the FISA
definition of a "United States person" includes naturalized citizens, so
warrantless surveillance of him would apparently not fall under FISA's
exclusion, and would therefore be prohibited.
Schmidt defended Bush with a red herring
Schmidt then wrote: "But even if the NSA activity is 'electronic
surveillance' [as set out and governed by FISA] and the Sept. 11 resolution* is
not 'statutory authorization' within the meaning of FISA, the act still cannot,
in the words of the 2002 Court of Review decision, 'encroach upon the
president's constitutional power.' " Schmidt was quoting a ruling by the
Foreign Intelligence Surveillance Court of Review, which stated that FISA could
not encroach on the president's "authority to conduct warrantless searches to
obtain foreign intelligence information." However, Schmidt's assertion is
meaningless. 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
Schmidt's suggestion, the case he cited does not address that question.
Schmidt accepted Bush's assertions about scope of NSA program, despite past
inconsistent statements and despite lack of judicial oversight
Schmidt continued:
Should we be afraid of this inherent presidential power? Of course. If
surveillance is used only for the purpose of preventing another Sept. 11 type
of attack or a similar threat, the harm of interfering with the privacy of
people in this country is minimal and the benefit is immense. The danger is
that surveillance will not be used solely for that narrow and extraordinary
purpose.
But we cannot eliminate the need for extraordinary action in the kind of
unforeseen circumstances presented by Sept.11. I do not believe the
Constitution allows Congress to take away from the president the inherent
authority to act in response to a foreign attack. That inherent power is reason
to be careful about who we elect as president, but it is authority we have
needed in the past and, in the light of history, could well need again.
Here, Schmidt suggested that the eavesdropping program has not already
expanded beyond the administration's stated "narrow and extraordinary purpose."
But how could Schmidt know this? Many observers have noted that the president's
April 2004 statement (in which he said: "Now, by the way, any time you hear the
United States government talking about wiretap, it requires -- a wiretap
requires a court order. Nothing has changed, by the way. When we're talking
about chasing down terrorists, we're talking about getting a court order before
we do so") appears to have been flatly false. Gonzales stated the supposed
boundaries of the program during a December 19 press conference, claiming that
the eavesdropping is limited to "communication[s] where the other end of the
call is outside the United States and where we believe that either the American
citizen or the person outside the United States is somehow affiliated with Al
Qaeda." But there has been no judicial review or any substantive congressional
oversight of the program. Indeed, The New York Times reported on December 21
that the program "has captured what are purely domestic communications in some
cases, despite a requirement by the White House that one end of the intercepted
conversations take place on foreign soil." According to the Times:
Eavesdropping on communications between two people who are both inside the
United States is prohibited under Mr. Bush's order allowing some domestic
surveillance.
But in at least one instance, someone using an international cellphone was
thought to be outside the United States when in fact both people in the
conversation were in the country. Officials, who spoke on condition of
anonymity because the program remains classified, would not discuss the number
of accidental intercepts, but the total is thought to represent a very small
fraction of the total number of wiretaps that Mr. Bush has authorized without
getting warrants. In all, officials say the program has been used to eavesdrop
on as many as 500 people at any one time, with the total number of people
reaching perhaps into the thousands in the last three years.
* Joint Resolution 23, which authorized the president to "use all necessary
and appropriate force against those nations, organizations, or persons he
determines planned, authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001."
|