I didn’t get far into this LA Times editorial before spotting the first hint of BDS. Look at this misstatement of fact:

After the 9/11 attacks, Bush determined that U.S. intelligence agencies needed to be more aggressive in intercepting telephone calls and e-mail between suspected foreign terrorists and people in the United States. He then faced a choice: He could publicly ask Congress to remedy what he saw as shortcomings in the Foreign Intelligence Surveillance Act, the 1978 law that required judicial oversight of domestic wiretapping of suspected foreign agents. Or he could act on his own, and in secret, to authorize the monitoring of electronic communications involving Americans.

Abetted by Vice President Dick Cheney, who long had resented what he regarded as congressional encroachment on executive authority, Bush made the latter choice.

Actually, President Bush didn’t act alone. Here’s what a USA Today article said about the NSA’s Terrorist Surveillance Program:

The Bush administration briefed select members of Congress 30 times on the National Security Agency’s surveillance programs since the Sept. 11 attacks, according to a declassified list released Wednesday.

The fact is that the Bush administration briefed the chairmen and ranking members of the House and Senate Intelligence Committees on the program. I’ll gladly admit that these meetings were confidential. After all, what’s the sense of having public hearings on a confidential program aimed at not telling terrorists that we’re intercepting their communications?

In other words, the Bush administration took prudent steps to prevent more terrorist attacks while keeping members of congress with the proper security clearance informed. The editorialist clearly intended to paint the image that President Bush was evil for concealing the NSA’s TSP. Here’s another whiny section from the editorial:

Only this year, after the election of a Democratic Congress, did Bush shift ground and agree to allow the program to be supervised by the secret federal court created by FISA.

This acceptance of judicial oversight proved to be short-lived. When the court found fault with aspects of the program, reportedly ruling that FISA required the government to seek a court order for “foreign-to-foreign” communications that are routed through the United States, Bush pressed Congress to do much more than close what everyone agreed was a loophole created by advances in technology.

First of all, what proof does the unnamed editorialist provide to show that President Bush “pressed Congress to do much more than close” a loophole that some wacky FISA appeals court judge misguidedly created? It’s likely that the editorialist is opining that that’s what happened. He/she couldn’t possibly know without being a member of congress who’d been lobbied by the Bush administration.

Secondly, I called Rep. Keith Ellison’s office this week to see how he voted on the RESTORE Act. After talking with the secretary of his Minneapolis office for 2-3 minutes, she put Rep. Ellison on the phone. (To say that I was surprised would be understatement.) Rep. Ellison said that the RESTORE Act was “10 million times better than” what we currently have in place and that “FISA never applied to foreign to foreign calls.” I chose not to point out the FISA appellate court judge’s ruling that calls from Pakistan to Afghanistan that route through an American switch now required a warrant from the FISA Court.

In other words, only for a brief period of time was there any judicial oversight of foreign surveillance required. The editorialist implies that that’s been required since FISA was enacted. It clearly wasn’t.

I’d further point out that precedent says that the president has inherent constitutional authority to conduct reasonable searches. The Fourth Amendment only protects against unreasonable searches. Intercepting enemy communications, especially in wartime, has always been considered a reasonable search.

Let’s take Rep. Ellison at his word that “FISA never applied to foreign to foreign communications” for the sake of this discussion. That leads me to ask why the DNI and the Attorney General would have to apply for a yearlong warrant? That’s what this provision clearly states:

Sec. 105B. (a) In General- Notwithstanding any other provision of this Act, the Director of National Intelligence and the Attorney General may jointly apply to a judge of the court established under section 103(a) for an ex parte order, or the extension of an order, authorizing for a period of up to one year the acquisition of communications of persons that are reasonably believed to be located outside the United States and not United States persons for the purpose of collecting foreign intelligence information (as defined in paragraph (1) or (2)(A) of section 101(e)) by targeting those persons.

If Rep. Ellison is right in saying that foreign to foreign communications have never been subject to FISA warrants, why should they now be required? At minimum, this seems like a provision that just creates another time-consuming and unnecessary burden for the DNI and the Attorney General.

Let’s step back and ask a simple question: Did the Founding Fathers envision letting the Legislative Branch attach strings that hindered the Executive Branch’s ability to protect us from attacks? I’m not a constitutional scholar but, after reading the Constitution, it’s apparent that they intended for the Executive Branch to be in charge of national security and that the Legislative Branch only had oversight responsibilities.

When the dust settles, I strongly suspect that RESTORE will be substantially rewritten. I believe that because the Senate is already on record as saying they’ll reject RESTORE. (Does this mean that the editorialist will characterize Senate Democrats in the same way as he/she mischaracterizes President Bush? Something tells me that that won’t happen.)

For all the whining about President Bush’s promised veto, there isn’t a single word spoken about having the Senate agree to passing RESTORE. That seems hypocritical at minimum. Why am I not surprised that an LA Times editorial was this selective in their criticism?

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Cross-posted at California Conservative

3 Responses to “The Lies of the LA Times”

  • Winston Smith says:

    Gary,

    Does the Council on Foreign Relations have BDS?

    http://www.cfr.org/publication/14472/secrecy_report_card_2007.html

    Among other things, they found that President Bush has used the “state secrets” priviledge to withold information from the courts, Congress and the public 39 times since 2001.

    At the height of the Cold War, from 1953 to 1976, it was used just 6 times.

  • Gary Gross says:

    Gary,

    Does the Council on Foreign Relations have BDS?

    http://www.cfr.org/publication/14472/secrecy_report_card_2007.html

    Among other things, they found that President Bush has used the “state secrets” priviledge to withold information from the courts, Congress and the public 39 times since 2001.

    At the height of the Cold War, from 1953 to 1976, it was used just 6 times.

    Comment by Winston Smith • 13Oct2007

    That’s an irrelevant point. the relevant point is that the Constitution gives the commander-in-chief the inherent authority to conduct warrantless surveillance. That’s what every appellate court has ruled. Argue all you want but precedent is precedent.

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