Today's FISA ruling: a case study in 8 years of lying and ignorance

Right-wing Bush followers and ignorant journalists combine to create a completely false storyline to defend Bush's policies

By Glenn Greenwald

Published January 15, 2009 9:57PM (EST)

(updated below - Update II - Update III - Update IV)

Ever since The New York Times, on December 16, 2005, first reported that President Bush ordered spying on Americans without the warrants required by FISA, the clear illegality that was unveiled -- FISA said that X was a felony and Bush admitted to doing X -- was continuously obscured by a combination of deceit on the part of Bush followers and ignorance, sloth and confusion on the part of the media.  Beginning within the first days of the controversy, Bush followers who literally had no idea what they were talking about offered factually false claims and even distorted quotations from the statute to justify what was done.  Today is a perfect example illustrating how completely misinformed and/or deliberately deceitful right-wing advocates inject blatant falsehoods into these debates.  

Earlier today, The New York Times' Eric Lichtblau (one of the NYT reporters who originally broke the NSA story yet often mindlessly recites false Bush claims even on this issue) wrote a story which reported that the FISA Court of Review had issued a decision "validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a specific court order."  From start to finish, Lichtblau's description of the ruling was muddled and contradictory, even nonsensical in some places.  

Nonetheless, it was crystal clear even from Lichtblau's poorly written story that the court's ruling had nothing whatsoever to do with whether Bush acted legally or properly when he ordered warrantless eavesdropping on Americans from 2001-2006, when warrantless eavesdropping was a felony under FISA.  To the contrary, as I explained earlier today (here) -- and as Talk Left's Armando and Anonymous Liberal (both lawyers) also detailed --  the FISA court was addressing a totally different and much narrower question:  namely, whether the warrantless eavesdropping which Congress authorized in the 2007 Protect America Act was prohibited by the Fourth Amendment's warrant requirement. 

The ruling had nothing whatsoever to do with the central question at the heart of the NSA controversy:  namely, whether Bush committed felonies by ordering warrantless eavesdropping in the face of a Congressional statute that explicitly made such eavesdropping a felony.  As muddled as Lichtblau was, that was painfully obvious even from his story:

The Aug. 22 appeals court decision upheld a secret ruling issued last year by the intelligence court that it oversees, known as the Foreign Intelligence Surveillance, or FISA, court. In that initial opinion, the secret court found that Congress had acted within its authority in August 2007 when it passed a hotly debated law known as the Protect America Act, which gave the executive branch broad power to eavesdrop on international communications.

Is it really that hard -- especially for people who pretend to be experts in this controversy -- to tell the difference between (a) whether the President had the authority to eavesdrop on Americans in violation of a Congressional statute and (b) whether the Congress is constitutionally permitted to enact a statute authorizing warrantless eavesdropping?  Apparently it is hard, because hordes of right-wing advocates, including those who claim to be "legal experts," are falsely claiming today that the FISA court did (a) (namely:  found that the President had the power to order warrantless eavesdropping in violation of a statute), rather than what the court actually did:  (b) (found that the Fourth Amendment does not prohibit Congress from legalizing warrantless eavesdropping).

Since Lichtblau's article was placed online, a copy of the actual decision became available (here - .pdf).  The only question it addresses -- as I explained earlier today --  (here) is whether the Protect America Act is constitutional under the Fourth Amendment (see also Anonymous Liberal's update here).  That's the only issue it addresses.  It has nothing to do with the core of the NSA scandal:  whether George Bush acted properly by ordering eavesdropping in violation of the law.

But if you are a reader of right-wing Bush followers, you would have been fed today a completely alternative reality in which the FISA Court "vindicated" Bush's so-called "Terrorist Surveillance Program."  Let's just survey a few glaring falsehoods that they are disseminating today, beginning with one of the most rabidly authoritarian voices who never stops claiming to be a preeminent expert in this field:

Andrew McCarthy, National Review:

The New York Times reports that the Foreign Intelligence Surveillance Court of Review — the specialized federal appeals court created by the 1978 FISA statute to rule on questions involving national security surveillance — has reaffirmed that the President of the United States has inherent constitutional authority to monitor international communications without court permission.

How misinformed, dumb and/or dishonest does someone have to be to read Lichtblau's article -- reporting that the court "found that Congress had acted within its authority in August 2007 when it passed a hotly debated law known as the Protect America Act" -- and conclude that this had anything to do with the "inherent constitutional authority" of the President to eavesdrop in violation of a Congressional statute?  And what kind of self-proclaimed legal expert would make giddy claims about "vindication" from a court decision without at least noting that he hadn't read the decision and making it clear that he had no idea whether this was true?  

McCarthy then adds:

It understates the case to say the Bush administration has been slandered for asserting this power — accused of shredding the Constitution and violating the principle that no one is above the law (even as Congress put itself above the law — the Constitution — by enacting and trying to enforce a statute, FISA, that sought to diminish the president's constitutional authority). It was never true.

He's obviously aware that the central claim in the NSA scandal is that Bush broke the law because he eavesdropped in exactly the way Congress had prohibited.  How can anyone think that the court decision released today had anything to do with -- let alone resolved -- that question?  Descending a bit further into the right-wing muck, we find:

Ed Morrissey, Hot Air:

This should really enrage the Left. The FISA court will make public a ruling that validates George Bush’s warrantless surveillance on international communications, including those with one terminus in the United States. . . . While the ruling does not directly reference the Terrorist Surveillance Program — at least according to the Times — the ruling on the scope of authority invested in the executive relates directly to that program. . . .

In the end, though, the biggest beneficiary should be George Bush. He has been unfairly castigated as some sort of fascist for using the power he already had available to track terrorist communications and keep this nation safe. Plenty of people owe him a big apology — and the New York Times and Eric Lichtblau are first in line.

A.J. Strata, "The Strata-Sphere":

Well now the top intelligence court of the land has come out with an opinion vindicating Bush and settling once and for all how insane the lunatic left is when it comes to national security. . . . Bush leaves office vindicated, and the Mad-Hatter left has destroyed what little credibility they have left. They are lucky that is all their insane actions resulted in.

Strata added: "The FIS Court of Review is the top court in the land on such matters. . . .There is no higher authority in the federal court system."  Someone might want to tell him that before he writes further, he should read about this thing called the "U.S. Supreme Court," which happens to be a "higher authority in the federal court system" than the FISA Court of Review on all matters.


And there you have it, one of the biggest whinges of the left has been that W has burned the Constitution and smoked it's ashes. And here is the very court they were screaming he had subverted making a public ruling that the President was properly exercising his authority. If W had not undertaken these actions it would be fair to argue that he had failed to do his job making us safe from attack.

And on and on and on.  I'm certain more of it is sprouting up as I write.

It's certainly true that some people believe and have argued that warrantless eavesdropping (even when authorized by Congress) violates the Fourth Amendment's warrant requirement (that's a question which the Supreme Court, in the 1972 Keith case, explicitly left unresolved when it ruled that Nixon's warrantless eavesdropping in the context of domestic terrorism investigations violated the Fourth Amendment, but said that this may or may not be true for international terrorism investigations).  The ruling released today did resolve that question (at least until Supreme Court review) by ruling that the warrantless eavesdropping which Congress authorized in the 2007 Protect America Act did not violate the Fourth Amendment.

But that has always been, at most, a totally ancillary issue to the NSA scandal.  The uproar over what Bush did was based in the fact that the eavesdropping he ordered was illegal because it was prohibited by the Congressional statute called "FISA".  Bush followers and the Bush DOJ, in response, claimed that (i) the President has the "inherent authority" under Article II to eavesdrop however he wants, regardless of what Congress says and (ii) the 2001 AUMF "implicitly authorized" eavesdropping in violation of FISA.  

The FISA ruling had nothing remotely to do with those issues and nobody who is minimally honest and has a working brain will claim otherwise.  The only two federal judges to address those questions in the past rejected Bush's theories and found the NSA eavesdropping program illegal.  More importantly, the Supreme Court, in its 2006 Hamdan ruling that Bush lacked the power to order military commission without Congressional authorization, rejected the exact theories of broad executive power used by Bush to justify the NSA program.

In fact, Andrew McCarthy himself, in the wake of the Hamdan ruling, wrote an article for National Review arguing that the Supreme Court's Hamdan ruling constituted a definitive rejection of the Bush administration's excuses for violating FISA.  The article was entitled:  "Dead Man Walking:  Hamdan sounds the death knell for the NSA’s Terrorist Surveillance Program":

The Supreme Court’s decision in Hamdan v. Rumsfeld is a national-security disaster. . . . Hamdan is a disaster because it sounds the death knell for the National Security Agency’s Terrorist Surveillance Program (TSP), . . .

On its face, Hamdan is a case about military commissions, not electronic surveillance. Yet, its facts are saliently analogous to those of the TSP. . . .

Under Hamdan’s logic, even if the president starts out with inherent Article II authority, that power — constitutional power — can now be rescinded by statute. . . .

In any event, if the Kennedy theory takes root — as it seems to have in Hamdan — it is impossible to see how the TSP survives. 

In the wake of Hamdan, McCarthy then added about his defense of Bush's NSA eavesdropping program:  "My own rule of thumb is to try to fight hard but fight fair, and admit when I’ve lost. I’ve lost."

That -- as anyone paying even minimal attention knows -- is what the NSA scandal has been and still is about:  whether George Bush had the power to break the law, to violate FISA, in how he eavesdropped on Americans.  The FISA decision they are celebrating today doesn't even touch on that question.  How could it?  Its only concern is whether the eavesdropping authorized by Congress transgresses Constitutional limits.  Quite obviously, it has nothing to do with the power of the President to violate Congressional limits on eavesdropping.

But this is what has been happening with the FISA controversy -- and, for that matter, all of these lawbreaking scandals -- from the start.  Right-wing Bush followers spout total falsehoods.  Reporters who cover the story (such as Lichtblau), to say nothing of cable news talking heads, are too slothful, ill-informed and/or just dumb to understand why these right-wing claims are so factually false.  

So they, at best, report what "both sides" are saying, or -- as will be the case here, I predict -- the immediate storyline that "the FISA court vindicated Bush's spying and ruled it legal" immediately settles in (it has the advantages of simplicity and power-worshipping, an irresistable one-two punch for Beltway media stars), and then, no matter how many facts are marshalled or energy is expended to uproot it, it stays entrenched forever, rotting away and further infecting our discourse and distorting our collective actions with regard to our government's chronic lawbreaking.  Today's orgy of ignorance is a nice little case study of the last eight years.

* * * * *

Part 2 of my Los Angeles Times debate/discussion with American Spectator Editor Jim Antle is now available, here.  Antle makes several arguments with which I disagree but (in stark contrast to the above-referenced individuals) makes them quite well and reasonably.  Part 1 is here.


UPDATEThe Washington Monthly's Steve Benen also documents:  "Several far-right blogs insisted today that Bush has been 'vindicated' and was 'right all along.'  That's simply not what happened."  Perhaps this myth can be extinguished before taking root if enough people stomp on it quickly and forcefully.


UPDATE II:  Conservative Tom Maguire notes the immediate reaction to news of this decision ("Cool - Bush vindicated") but then stops and thinks about it for a second and then asks:

But wait: . . . I am not a lawyer, but if the question before the court was the constitutionality of the 2007 act, why would they have been also opining on the President's separate conduct?

That's a good question.  He should pose it to the Right's leading "legal expert," Andy McCarthy, whose complete ignorance about the ruling did not stop him (as usual) from pedantically opining on it and declaring (as usual) that it vindicated the President.


UPDATE III:  The misleading headline on the Associated Press article -- "Court ruling endorses Bush surveillance policy" -- predictably caused that headline to appear in newspapers across the country, but at least the article contained this clear and accurate statement:

The decision does not address the legality of an earlier warrantless surveillance program that the Bush administration secretly put in place without legislation from Congress, and which The New York Times exposed in 2005. The 2007 law that was the focus of the court ruling expired in 2008, but intelligence gathering efforts that it authorized remained in effect.

Maybe Eric Lichtblau and his editors should intensely study that paragraph before writing about this topic again.

Also, one can't help but notice how Supreme Court decisions that find Bush policies to be illegal and unconstitutional -- such as the 2006 Hamdan ruling which invalidated his military commissions and his assertion that the Geneva Conventions are inapplicable to Al Qaeda and Taliban detainees, or the 2008 Boumediene ruling which held that Guantanamo detainees cannot be constitutionally denied habeas corpus -- are illegitimate and irrelevant when assessing the legality of Bush's actions and should be ignored.  But intermediate court rulings which the pro-Bush Right thinks are favorable -- such as yesterday's finding that the Protect America Act is constitutional -- are deemed infallible and conclusive vindication for the President.


UPDATE IV:  For the article in today's print edition of The New York Times, James Risen has joined Lichtblau on the byline and the article is substantially improved, noting:

The ruling came in a case involving an unidentified company’s challenge to 2007 legislation that expanded the president’s legal power to conduct wiretapping without warrants for intelligence purposes.

But the ruling, handed down in August 2008 by the Foreign Intelligence Surveillance Court of Review and made public Thursday, did not directly address whether President Bush was within his constitutional powers in ordering domestic wiretapping without warrants, without first getting Congressional approval, after the terrorist attacks of 2001.

Several legal experts cautioned that the ruling had limited application, since it dealt narrowly with the carrying out of a law that had been superseded by new legislation.

As Armando notes, the article is still far from perfect, but at least it now contains this vital point.

Glenn Greenwald

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