More plain and simple lies to defend warrantless spying - now from the Wall Street Journal

The Wall Street Journal has attacked Feingold's censure resolution. No big surprise there - but what is shocking, for supposedly the respectable upper crust of the right-wing media, is that every point of their argument can easily be shown to be outright lies – or at the minimum, a complete disregard for the distinction between truth and lies. This just goes to show their only interest is propagandizing for the administration. Here's the one paragraph on their editorial page where they take a break from horse-race handicapping the resolution, and try to dismiss its merits:

As a legal matter, Mr. Feingold's censure proposal is preposterous. The National Security Agency wiretaps were disclosed to Congressional leaders, including Democrats, from the start. The lead FISA court judges were also informed, and the Attorney General and Justice lawyers have monitored the wiretaps all along. Despite a media drumbeat about 'illegal domestic eavesdropping,' Mr. Bush's spirited defense of the program since news of it leaked has swung public opinion in support.

Here are the WSJ arguments compared to the facts:

• WSJ: "The National Security Agency wiretaps were disclosed to Congressional leaders, including Democrats, from the start."
  
• Fact: The warrantless NSA wiretaps were disclosed to eight members of Congress, including four Democrats; all eight were prohibited from making any recordings, taking any notes, or making any disclosure to anyone about what they learned. Needless to say, they had no way of engaging in any oversight; they were not allowed any questions.
  
• Conclusion: How was this different in effect than wheeling in eight slabs of tenderloin and briefing them on the NSA program? The eight members of Congress were bound and gagged; they were literally not allowed any way to investigate further or to let what little knowledge they had been provided from having any effect on the world outside their own minds. Some of them, like Jay Rockefeller, had grave concerns, but were frustrated in taking any action.
  

• WSJ: "The lead FISA court judges were also informed..."
  
• Fact: Only the chief judge of the FISC - originally Royce C. Lamberth, then Colleen Kollar-Kottelly - was briefed. They, like the eight members of Congress, were forbidden from taking any notes or making any disclosure to anyone else. They, like some of the eight members of Congress, had grave concerns about the program, but had no real way of acting on those concerns.
  

• WSJ: "...and the Attorney General and Justice lawyers have monitored the wiretaps all along."
  
• Fact: At least some Justice lawyers were in on the program, but even the Deputy Attorney General for national security, David S. Kris, was not informed of it, despite it going on for two years while he held that position.
  
• Conclusion: Many Justice Department attorneys, like James Comey and Jack Goldsmith, and even John Ashcroft and John Mueller, were concerned about whether the program was legal. Comey and Goldsmith are gone, and Kris was apparently never even informed; when the administration says they had lots of DOJ lawyers approve the program, what this really means is that they pre-determined the legal conclusion beforehand, then relied on those lawyers willing to rubber-stamp that pre-determined conclusion.
  

• WSJ: "Despite a media drumbeat about 'illegal domestic eavesdropping,' Mr. Bush's spirited defense of the program since news of it leaked has swung public opinion in support."
  
• Fact: dozens of news outlets have reported on the warrantless domestic spying program, including the fact that dozens of legal scholars, from across the political spectrum - including conservatives like David S. Kris, Bruce Fein, Bob Barr, Bill Sessions, Richard Epstein - have concluded that the program is illegal. The public opinions of the major media and most Democratic senators, following the lead and/or intimidation of the GOP propaganda machine, have been dismissive of censuring Bush, but the actual public opinion of the American people has been 33% approval of the President, 52% approval for Congress considering impeachment if Bush wiretapped American citizens without the approval of a judge (which he did), and 46% in favor, compared with 44% opposed, to the Senate passing a resolution censuring Bush for authorizing wiretaps of Americans within the United States without obtaining court orders.
  
• Conclusion: Responsible reporting from virtually every news outlet not connected to the GOP propaganda cabal of the Wall Street Journal, Fox News, et al. is dismissed as a "drumbeat", without any substantive rebuttal of their reportage. Bush did indeed come out swinging on this after it was made public by the New York Times, because he was trapped in a corner - it was plainly obvious that he was violating the law, and he only had a few options remaining, all of them desperate - the one he went with being the declaration that he is authorized to ignore the law. The major media and the Senate are caught in an echo chamber listening to each other, and both lagging far behind the American people, who overwhelmingly disapprove of Bush. With a plurality of the public already in favor of the censure resolution despite its recency and the overwhelmingly negative commentary surrounding it, the demand for censure is only going to keep rising.
  

Going back to the beginning of the paragraph, the WSJ says "As a legal matter, Mr. Feingold's censure proposal is preposterous." So the WSJ argues that the warrantless spying was in fact legal because it was disclosed, under secrecy orders, to eight legislators, one judge, and some executive branch employees. I hope the WSJ editorial board doesn’t include any lawyers; if it does, they should go back to their law schools and demand a refund.

What does the law actually require?

The law requires that:

“On a semiannual basis the Attorney General shall fully inform the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence [the entire committees – not to eight members under a gag order] concerning all electronic surveillance under this subchapter. Nothing in this subchapter shall be deemed to limit the authority and responsibility of the appropriate committees of each House of Congress to obtain such information as they may need to carry out their respective functions and duties.”

50 U.S.C. 1808(a)(1).

The administration clearly violated this law.

The law also requires that:

“…when the Attorney General reasonably determines that: (1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and (2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists; he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.”

50 U.S.C. 1805(f).

In other words, (1) the Attorney General’s determination that the need for a wiretap is an emergency has to be reasonable; (2) he or his designee must inform a FISC judge that they decided to wiretap before getting a warrant, as soon as they make that decision, as a separate requirement from getting the warrant within 72 hours; and (3) he must file a warrant application within 72 hours.

The administration clearly violated each of these three aspects of this law.

What is preposterous is not Mr. Feingold's censure proposal, but rather the Wall Street Journal’s disregard for the plain and simple truth.