These guys are supposed to be better at spinning than this

December 21, 2005

The warrantless-search story is now in its fifth day and I keep waiting for the vaunted White House political machine to come up with a compelling defense that doesn’t include, “the president can do whatever he wants.” I’ve seen these guys spin some pretty ugly facts — Bush, after all, won a second term despite an indefensible record on pretty much everything — and I’ve assumed it’s only a matter of time before this NSA surveillance program had a set of talking points Republicans can repeat with a straight face.

Except it hasn’t happened. The administration has tried offering a few justifications for their decisions, but to date, none of them make any sense. Let’s review.

* There was a check on presidential power because Congress was briefed — Wrong. First, the legal check was to go FISA courts. Second, a handful of lawmakers received briefings, but they were a joke, featuring key omissions, unanswered questions, and no recourse to those who felt the tactics were illegal.

* Bush had to circumvent the law because of the need for speed — Wrong. FISA allows the administration to tap a line and get permission up to three days later.

* All of the monitored calls were international — Wrong. An undetermined number of the calls were “accidentally” included despite being purely domestic communications.

* The 9/11 resolution passed by Congress empowered Bush to take these kinds of actions — Wrong. Members of Congress from both parties who voted for the law have said that they had no idea the administration would interpret it to cover such a step. In a review of the five-hour House debate, no mention of intelligence gathering in general or electronic surveillance in particular — or of bypassing warrants — could be found. John McCain said, “I think it’s probably clear we didn’t know we were voting for that.” Arlen Specter added that he is “very, very skeptical” about Bush’s explanation.

* A 2002 decision by the FISA appeals court approved warrantless searches — Wrong. Conservatives are badly misreading the relevant judicial ruling.

* 9/11 could have been prevented if Bush had implemented warrantless searches sooner — Wrong. A 2002 inquiry into the case by the House and Senate intelligence committees blamed interagency communication breakdowns — not shortcomings of the Foreign Intelligence Surveillance Act or any other intelligence-gathering guidelines.

* The Clinton administration backed warrantless searches under FISA in 1994 and through a program called Echelon — Wildly misleading. The Clinton administration said physical searches weren’t covered by FISA in 1994 because they were accurately describing what the law was at the time. Of course, Clinton supported a change to FISA in 1995 to include physical searches and never backed the notion of presidential authority that can circumvent FISA. As for Echelon, unlike the Bush program, it complied with FISA.

C’mon, Bush White House, I know you can do better than this. If not, we’re inclined to think this is a pretty serious scandal after all.

They can’t think of anything beyond “the president can do whatever he wants” because that’s all they’ve got. There is no defense — they’re caught red handed breaking the law.

They need a lawyer, not a political consultant.

  • My argument would be that it’s a trivial
    transgression of the rules. The Dems
    are arguing how easy it would have been
    to comply with FISA – it’s just a rubber
    stamp process. So I’d counter, okay,
    you’re right, next time we’ll do it, sorry,
    what’s the big deal? It’s just a formality.
    Slap my wrist, and let’s move on to
    important things.

  • Well I don’t see it as in any way a trivial transgression. It’s a core distinction between gettting a warrant and not getting a warrant.

    I think the reason they didn’t get FISA approval even though they could do it immediately, was that they would have to justify the wiretaps retroactively and they knew they couldn’t do it. (As I understand it even FISA turned downed Bush for 4 warrants in 2003–that’s when Bush took the illegal route)

    I sure iike the way the CarpetBagger Report lays out the summaries like this thread and the one about it not having to be a partisan issue. Great work.

  • My head is starting to hurt. The Constitution of the United States is not some mere technicality. Even a rubber stamp process is important.

    The Bushies just decided it was too inconvenient to retroactively file motions. Or maybe they knew they’d loose. Attorney General Gonzalez says that they didn’t try to revise FISA because they might not have been successful. Yet somehow he determined that Congress implicitly granted bush powers they wouldn’t explicitly grant him.

    I just heard a news conference with Rep. Hoekstra, chairman of the House Intelligence Committee. He seemed to be saying that the President and a few members of the House and Senate can decide in secret to eliminate judical oversight and that objections to doing so should have to be in secret. That’s basically saying that we’re amending the 4th amendment and changing the scope of judical authority granted in the Constitution. 2 amendmets to the Constitution done in secret and not being passed pursuant to to the Constitutionally prescribed method of amending the Constitution. That’s more of an activist act than anyI can think of a judge doing.

  • Isn’t it amazing that they’ve known for over a year that the Times was onto this and ready to publish it, yet they can’t seem to come up with a reasonable explanation? You’d think they could come up with SOMETHING after a year!

    Another thought occurred to me: What if this is nothing more than mind games in order to get America’s support for less-onerous spying? That is, go overboard in order to provoke outrage so that a less objectionable alternative gains support in comparison.

    One could also use that explanation for the high gas prices. People were outraged by $3/gallon for gas, but in comparison, $2.30/gallon isn’t so bad. So people accept it.

    Perhaps the Bush administration feels that people would be more supportive of the Patriot Act if they back off on this warrantless spying (which they may or may not have actually carried out). People generally will support the lesser of two evils.

  • Splitting hairs here, but I wanted to make sure I got this point right when rebutting all the people who think anything Matt Drudge says is gospel. Much has been made lately of the Aldrich Ames case and the warrantless physical searches of Ames’s house in 1993. These clearly did not fall under FISA as it existed at the time. But what about the wiretaps of Ames’s house and office that were going on during the same period? These seem to still fall under the FISA statute (though they were being done by the FBI, like they were supposed to, and not the NSA). Were they also done without warrants?

    I’m definitely not meaning to accuse the Clinton administration of anything remotely resembling what Bush has done; I think Clinton’s support for expanding oversight in 1994 is sufficient evidence of the administration’s good faith in preserving civil liberties. I’m just curious if the the FBI and DoJ actually did break the law in the Ames case.

  • You have to ask yourself: if Bill Clinton had engaged in illegal wiretaps for 5 years following the first world trade center bombing and before the Millenia threats, if Bill Kristol and David Brooks and all their ilk would be absolutely positive the President of the United States had immense powers to do whatever it takes to ‘keep the people safe’.

  • Drew, you make me think that they had forever to come up with arguments as to why we should destroy social security, and they couldn’t.

    my guess? hubris, combined with spending their time in an ideological bubble, combined with not particularly impressive ratiocinative abilities.

    in short, all the stellar attributes we’ve grown accustomed to seeing out of the bush administration.

  • It isn’t just that they do not have talking points, they do not have the usual, well-disciplined legions willing to repeat them.

    A Republican Committee chairman is actually calling for an investigation.

    Oh, my.

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