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Fit to Print?

Neither the Bush administration nor the NSA broke the law, so why did the New York Times break the story?
By Edward Morrissey
Weekly Standard
12/21/2005 12:00:00 AM

THE REVELATION by the New York Times of an NSA program to review international communications could only cause surprise among those unfamiliar with the history and mission of the agency. The National Security Agency descended from various post-WWII military signal agencies, a centralized and civilianized intelligence service focused on one task: the exploitation of international communications to keep the United States from suffering another Pearl Harbor.

Given that we had suffered just that kind of attack on September 11, 2001 by allowing existing law to have the most negative interpretation possible for coordination between law enforcement and intelligence services--which would create a storm of criticism from the 9/11 Commission and Congress--the NSA understandably took center stage for the defense of the United States. Combined with the Patriot Act, the government took the position that a wartime administration not only needed to ensure greater cooperation and coordination between agencies, but to get better intelligence on which to act. The discovery that the al-Qaeda terrorists operated with impunity from the American homeland for months, openly communicating with Osama bin Laden's network from cell phones and email provided by American networks, showed the necessity of watching this front of the war much more carefully.

That may have ended with the publication of the program by the New York Times. It may end not because of any illegality, but because the revelation of the scope of our intelligence collection will warn terrorists about their methods of communication. They will likely adapt their tactics. So why, after sitting on it for over a year, did the Times choose to print the story now?

Since the Times story broke, the public has received varying descriptions of what the paper actually reported, with the bogus charge that the NSA had spied on American citizens getting the most repetition. Of course, that allegation never appears in the Times article. Reporters James Risen and Eric Lichtblau carefully avoided making that charge, and it makes a difference:

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

Bush's critics have mostly argued that the NSA violated the Foreign Intelligence Surveillance Act by failing to secure warrants before performing a "search" on these international communications. However, FISA gives wide latitude to the government when such communication does not involve a "U.S. person." FISA authorizes warrantless surveillance in its opening chapter:

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that--

(A) the electronic surveillance is solely directed at--

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

Under FISA, a "U.S. person" is defined as either a U.S. citizen or someone lawfully admitted to the United States for permanent residence. If someone resides in the United States on a visa and not a green card, they do not qualify, nor do they qualify if they get a green card under false pretenses. But the targets within the United States were identified through intelligence developed through captures of al Qaeda agents and their equipment. Most al Qaeda assets enter countries on student visas, which does not qualify them as a U.S. person under FISA--and therefore does not extend them the protection of warrants prior to or during surveillance.

The core of the issue is this: the NSA and the administration defined international communications as including those where one end--and one end only--occurs in the United States. Anything else still requires a warrant, as the Times acknowledges.

MOREOVER, the NSA's efforts did not take place in darkness. The FISA court did get informed of the issue, and the leaders of the oversight committees in both houses of Congress from both parties took part in the decision. It does not appear that the Bush administration sought to hide this from the other two branches of government, but sought to include them in the oversight of the new process as much as possible within the secrecy needed to conduct the program during wartime.

If one reads further into the Times's long and detailed article, the Bush administration received precedential decisions from courts that acknowledged the executive authority to wage war included a broader authority to set the parameters of espionage in order to guarantee security. Clearly, the administration has sought to comply with the letter of the law while getting the best possible information as quickly as it could to prevent another devastating terrorist attack.

AND THE PROGRAM PAID OFF. Information developed during the NSA effort kept al Qaeda from destroying the Brooklyn Bridge in 2003 when Iyman Faris was captured before he could initiate the attack. He pled guilty to terror-related charges and is now serving a long prison sentence.

As the New York Times undoubtedly discovered during its research, the NSA probably never broke the law at all, and certainly nothing uncovered in their article indicates any evidence that they did. Neither did President Bush in ordering the NSA to actually follow the law in aggressively pursuing the intelligence leads provided by their capture of terrorists in the field. The only real news that the Times provided is that the government didn't need the 9/11 Commission to tell it to use all the tools at its disposal.

SO WHY PUBLISH the story at all? The Washington Post published a behind-the-scenes look at the Times's editorial decision and found a couple of motivations for the decision to dust off the story which had been spiked during the election year. With the Patriot Act up for renewal, the current headlines finally provided a political context that would make the story a blockbuster--not because it describes illegal activity, but because it plays into fears about the rise of Orwellian Big Brother government from the Bush administration. The second impetus to publish came from the upcoming release of James Risen's book, State of War, due to be released in less than a month.

It had to dismay the editors at the Times, then, when an angry President Bush came out the next day, the day after that, and the day after that to take personal responsibility for the NSA effort. Bush called the Risen/Lichtblau bluff. Had there been any scandal, the president would hardly have run in front of a camera to admit to ordering the program. He changed the course of the debate and now has the Times and his other critics backpedaling.

The timing and questionable news value of the story opens the question about the motivation of the Times's editors. Has the Times allowed its anti-Bush bias to warp its judgment so badly that it deliberately undermined a critical part of America's defenses against terrorist attack to try to damage the president?

Edward Morrissey is a contributing writer to The Daily Standard and a contributor to the blog Captain's Quarters.

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