Bush on spying, or the "duty to speak with candor" revisited

by Tim Grieve

The president repeatedly uttered words Tuesday night in which he obscured the unpleasant reality of his own policy choices. But amid all of that State of the Union obfuscation, George W. Bush still managed to reserve a heightened level of dishonesty for his discussion of his warrantless spying program. Here's the entirety of the president's defense -- and the facts that undercut it along the way.

"It is said that prior to the attacks of September the 11th, our government failed to connect the dots of the conspiracy. We now know that two of the hijackers in the United States placed telephone calls to al-Qaida operatives overseas. But we did not know about their plans until it was too late."

Think Progress calls this the "two hijacker myth." As the Washington Post explained the other day, the federal government didn't need more information about the two hijackers before 9/11 as much as it needed to do a better job of using the information that it already had. As the 9/11 Commission explained, the National Security Agency first identified the two would-be hijackers in December 1999 but didn't follow up on them itself. It gave information to the CIA, but the CIA failed to put the two men on a watch list and failed to give information to the FBI. When the FBI finally figured out in August 2001 that one of the men had entered the United States, it treated the case as "routine" and assigned it to a "rookie agent," the Post reported.

"So to prevent another attack -- based on authority given to me by the Constitution and by statute -- I have authorized a terrorist surveillance program ..."

There's no real dispute that Bush's secret spying program violates the Foreign Intelligence Surveillance Act of 1978, and the Congressional Research Service has concluded that the Bush administration's arguments about other sources of authority are weak. "It appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here," the CRS wrote, adding that the president's legal justifications for his program do "not seem to be ... well grounded."

"... to aggressively pursue the international communications of suspected al-Qaida operatives and affiliates to and from America."

After initially insisting that it would have been technologically impossible for the NSA program to have monitored purely domestic calls, administration officials have admitted that they have, at times, done exactly that.

"Previous presidents have used the same constitutional authority I have ..."

If this is a general reference to the fact that previous presidents have used the commander-in-chief authority granted them by the Constitution, it doesn't say much about the specific way in which Bush has purported to use that power. And if this is a reference to the actions of the Clinton administration, well, it's a dog that won't hunt. As we've noted before, the Bush administration's "Clinton did it, too" arguments are based on actions the Clinton administration took before the Foreign Surveillance Act of 1978 was amended in 1995. Bush is bound by the current version of the act, not the weaker version that was in place during some of Clinton's presidency.

"... and federal courts have approved the use of that authority."

Although several lawsuits are now pending, no court, federal or otherwise, has passed judgment yet on Bush's warrantless spying program. In referring to approving "federal courts," Bush seems to have had in mind a 2002 decision in which the Foreign Intelligence Surveillance Court of Review said that it assumed that the president has "inherent authority to conduct warrantless searches to obtain foreign intelligence." But that decision upheld the Foreign Intelligence Surveillance Act, which requires the use of such warrants. Moreover, it said little or nothing about the president's authority to authorize searches without warrants when Congress has explicitly required them.

"Appropriate members of Congress have been kept informed."

The Bush administration briefed a handful of members of Congress about the warrantless spying program. According to the Congressional Research Service,
the National Security Act requires the administration to brief all members of the House and Senate intelligence committees, which it did not do.

"The terrorist surveillance program has helped prevent terrorist attacks. It remains essential to the security of America."

The White House has claimed repeatedly that the spying program has "helped prevent terrorist attacks," but it hasn't offered any specific details that would allow the claim to be substantiated. And while Bush says the spying program is "essential to the security of America," he has not explained why the procedures authorized by the Foreign Intelligence Surveillance Act of 1978 -- procedures that allow the government to obtain a warrant as much as 72 hours after it begins surveillance -- don't do the job just as well.

"If there are people inside our country who are talking with al-Qaida, we want to know about it ..."

The Foreign Intelligence Surveillance Act of 1978 allows the government to monitor calls "inside our country" so long as it gets a warrant from the Foreign Intelligence Surveillance Court. If the government has evidence suggesting that someone inside the United States is "talking with al-Qaida," there is no doubt that the court would grant a warrant to monitor such calls if the Bush administration went to the trouble of asking for one.
"... because we will not sit back and wait to be hit again."

The president did not "sit back and wait to be hit" when he was warned of an al-Qaida attack in August 2001. He went fishing instead.