White House Press Secretary Scott McClellan continued
the Bush Administration's efforts to spin its circumvension of the Foreign Intelligence Surveillance Act
, in a contentious press conference today.
The act says that the National Security Agency must obtain a warrant before conducting surveillance.
(President Bush acknowledged as much three times
on the campaign trail last year.) The Justice Department issued a 42-page defense of President Bush’s warrantless domestic spying program
, arguing that the Supreme Court agreed with the administration that it was correct to assume that detention of suspected terrorists was allowable, even though the word "detention" does not appear in the post-9/11 Congressional Authorization For Use Of Military Force. Therefore, the administration is correct to assume it can conduct surveillance of telephone calls between domestic and foreign locations, even though that is not expressed in the congressional authorization.
The leap of logic
, of course, is that the Bush Administration received court approval in the earlier example. It sought no such approval now. So while it assumed that it was operating legally, it has no proof of that. And there's a long list of people -- including at least 11 Republican Senators
and several prominent conservatives
-- who question the rationale.
But why should such things get in the way of today's press conference? The Bush Administration has a nifty, Orwellian title for their action -- calling it a "terrorist surveillance program" -- and McClellan's job today was to get that name out there, and to continue to suggest it's a "limited" program, involving "international" calls, points that have been disputed
Realize that since the surveillance program became known by the public, the Bush Administration has offered a myriad of excuses, many of which have been debunked. The Republican National Committee falsely said
that the Carter and Cllnton Administrations circumvented FISA -- a charge that was debunked
, but which McClellan refers to again today. Attorney General Alberto Gonzales said that Congress wouldn't have supported amending FISA to include the administration's "data mining" plans -- alluded to today by McClellan -- even though the assertion was later disputed
by Sen. John McCain (R-AZ). The Administration continues to say that it has briefed members of Congress, who approved the process. Yet, various senators have said that they were either misinformed
at the time about what the administration wanted to do, or not given a chance to express disapproval
with the plan.If the administration's case was so strong, why do they have to keep changing it, and why has it been so easy to debunk their various arguments?
That question wasn't asked at today's press conference. But here's a key exchange that gives you an idea of how McClellan works. He gets his talking points out, but what about the reporter's question? Duck, dodge and weave, and not much more.
Q Scott, Senator Specter sent the Attorney General a list of questions that he was going -- planned to ask at the hearing about the NSA surveillance program. And one of the questions he asked is, would you consider seeking approval from the FISA court at this time for the ongoing surveillance program. Is that something the administration is thinking about?
McCLELLAN: Well, let me mention a couple of things. One, first of all, let me just say I know the Attorney General looks forward to participating in next week's hearing. Or it's actually -- I guess, it's the following week, February 6th. The Attorney General looks forward to talking with the committee and with congressional leaders about the legal justification for this program. This is a terrorist surveillance program
. We are a nation engaged in war. It is a limited
, targeted program aimed at al Qaeda communications. There has to be an international component to it, so we're talking about international communications. And it has one sole purpose; that is to detect and prevent attacks.
We've already talked about the FISA court. That is a very important tool, as well, and we make very good use of the FISA tool. But FISA was created in a different time period for longer-term monitoring. This program is for a shorter period of time aimed at detection and prevention. And so that's what it's focus is.
And I think we have to step back and remember that -- and I think the Attorney General talked about this in his remarks yesterday -- there is a longtime tradition in war of engaging in surveillance of the enemy. That's what this is. We are a nation at war, and there is an enemy that is deadly and determined to strike us again and inflict even greater damage. And we saw the problem highlighted in the 9/11 Commission report when we learned too late about communications that were taking place from two hijackers that were in the United States talking to people outside the United States. That's the kind of problem this is designed to detect, and then be able to act and prevent attacks. It's about connecting the dots. That's what the 9/11 Commission said we need to do.
So the President not only had the authority to do what he's doing, but he has the responsibility to do what he is doing, because it's about saving lives. It's about preventing attacks. It's very limited
in nature, and it's focused on international communications involving al Qaeda members or affiliated terrorist organizations
from either communicating inside the United States to someone outside, or communicating from outside the United States to someone inside. And I think the American people expect us to do everything within our lawful power to protect them. And the President made it very clear that as long as he is President, he will continue acting to do everything he can within his powers and within the law to protect the American people. But we work very closely with Congress. We have briefed members of Congress on this vital tool
over the course of the law few years, and we'll continue to work closely with Congress.
Q I think that -- I mean, the way I read this question, he's asking, will you ask the FISA court for approval of this program -- not specific instances, but will you ask the FISA court if this is -- if this program, the overall program, is sanctioned under the law. And that's the --
McCLELLAN: Well, if the FISA court wants to talk any more about any communications that they have had with administration officials, that's up to them. It is a highly classified court, for good reasons.
Q They won't talk about it.
McCLELLAN: Well, that's why I leave it up to them. If there's anything more they want to say, then I would leave it up to them.
Q Can I just follow on this point, because let's be clear about a couple of things. First of all, the President argues, asserts, that he has the power to unilaterally authorize this wiretapping, okay? It's not -- he doesn't have the monopoly on the truth of how --
McCLELLAN: The courts have upheld it and previous administrations have asserted it
, as well.
Q Well, that was different, and that is, again -- this is your position
McCLELLAN: Same authority. Same authority
Q -- that's in dispute
McCLELLAN: No, that's not -- hang on -- that's not in dispute. And look at the Associate Attorney General under the Clinton administration. The courts have upheld this authority in the past. Look at the federal courts.
The President talked about it and we provided it in a document. So that's wrong.
Q No, I don't think that's wrong, and we can go into that, but I don't -- our time is not best spent doing that.
McCLELLAN: That the courts haven't upheld it?
Q My question is, instead of spending time trying to fine-tune the rhetoric over what you want to call this program for political purposes
, why not seek to amend FISA so that it can better suit your purposes, which is another thing the previous administration did when it wasn't considered to be agile enough? So why not, if you want the program to be more responsive, to be more agile, why not seek to amend FISA?
McCLELLAN: Let's look at a practical example. Do you expect our commanders, in a time of war, to go to a court while they're trying to surveil the enemy? I don't think so. This is a time of war. This is about wartime surveillance of the enemy. That's what this is about. And we don't ask our commanders to go to the court and ask for approval while they're trying to gain intelligence on the enemy. So I think that's a real practical term to look at it in when you're talking about this issue, because that's what this is about.
Q There's no way to amend
McCLELLAN: Well, no, let me back up, because I talked about this the last couple days. I mean, it's a very good question and an important question. FISA is an important tool. We use it. General Hayden talked about that. When we were briefing members of Congress over the course of the last few years -- I think it was more recently, over, maybe, the last couple years -- I think the Attorney General talked about it -- we talked with congressional leaders, bipartisan congressional leaders
, about this very issue: Should we go and get legislation that would reflect the authority the President already has? And those leaders felt that it could compromise our national security interest and this program if we were to go and get legislation passed. Because we don't want to let the enemy know about our play book, and the more you talk about this program, the more potential it has to harm our national security interest. That's why we don't get into talking about the operational aspects about it.
But it is important for the American people to understand exactly what this program is
and how limited
it is and what its purpose is. There's been some misrepresentations. Now, with that said, as I pointed out, we work very closely with Congress. We'll continue to work closely with Congress as we move forward
. But the President has the authority and the responsibility to do what he's doing and he's going to keep doing it.
The way McClellan spins it, the administration has done nothing but try to protect the American people from terrorists. But ask yourself, if the administration is willing to skirt the law -- and then come up with a myriad of easily debunked excuses to defend itself -- what other rules will it overlook and what other civil liberties will it violate, all under the heading of presidential "authority."