Is The NYT's NSA Story a New Memogate?

It seems like a common pattern lately. A mainstream media outlet publishes a bombshell story, and within days, the whole thing unravels quicker than a cheap sweater swarmed by kittens. Such is beginning to look like the case for The New York Times' eavesdropping controversy, which is showing a lot of wear and tear for its age.

Wednesday wasn't a very good day for the ongoing health of this story, or for members of the media hoping that the recent revelations concerning National Security Agency espionage tactics could lead to impeachment proceedings against President Bush.

The day started with a former member of the Clinton White House voicing strong words of support for the Bush administration's behavior. In a Chicago Tribune op—ed  entitled 'President Had Legal Authority to OK Taps,' former associate attorney general John Schmidt refuted media protestations concerning the illegality of the National Security Agency eavesdropping on American citizens who are in contact with known members of al Qaeda without a court order allowing it to do so:

'President Bush's post— Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e—mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.'

Ouch. That's gotta hurt. Schmidt continued his cross—examination by citing numerous court decisions regarding the matter:

 'In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.'

 'Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.'

 'In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that 'All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority.'"

He continued:

'Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms.' 

For those keeping score, that would include Carter, Reagan, Clinton, and two Bushes. Hmmm. Is Schmidt suggesting that the current President Bush is only saying that he possesses the same authority the past four administrations claimed to have?  Imagine the gall. The article concluded:

'But we cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by Sept.11. I do not believe the Constitution allows Congress to take away from the president the inherent authority to act in response to a foreign attack. That inherent power is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history, could well need again.'

Yikes. That can't help the 'Impeach Bush Now' crowd. Unfortunately for them, the worst was yet to come.

Later in the day, the Drudge Report and Fox News revealed that former presidents Carter and Clinton both made changes to the Foreign Intelligence Surveillance Act of 1978 under executive orders that are quite pertinent to this eavesdropping controversy. First, on May 23, 1979, Executive Order 12139  issued by President Carter stated:

'By the authority vested in me as President by Sections 102 and 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802 and 1804), in order to provide as set forth in that Act for the authorization of electronic surveillance for foreign intelligence purposes, it is hereby ordered as follows:

'1—101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.'

Roughly sixteen years later, President Clinton made a further change to FISA with Executive Order 12949:

'By the authority vested in me as President by the Constitution and the laws of the United States, including sections 302 and 303 of the Foreign Intelligence Surveillance Act of 1978 ('Act') (50 U.S.C.  1801, et seq.), as amended by Public Law 103— 359, and in order to provide for the authorization of physical searches for foreign intelligence purposes as set forth in the Act, it is hereby ordered as follows:

'Section 1.  Pursuant to section 302(a)(1) of the Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.'

There are a few facets of these orders that add to the recent discussion concerning eavesdropping. First, Carter's order appears to support the Bush administration's assertions made the past few days that its actions are indeed acceptable by statute. Here's what attorney general Roberto Gonzales said about this subject on CBS's 'The Early Show' on Monday:

'The Foreign Intelligence Surveillance Act was passed in 1978. We continue to take advantage of the authorities under that act. But we've had dramatic changes in technology. And we are confronting a new kind of enemy in a new kind of war and we need to have the speed and agility and utilize all the tools available to this president in confronting this evidence. The Foreign Intelligence Surveillance Act does require that we get a court order before we engage in electronic surveillance of the types the president talked about on Saturday, except as provided by statute.'

Carter's executive order granting the attorney general the authority 'to approve electronic surveillance to acquire foreign intelligence information without a court order' seems to be the kind of statute Gonzales was referring to. Yet, that doesn't answer why the Times, which had more than twelve months to research its 3,300—word article that started this controversy, chose not to address these pertinent changes to FISA. One possible answer: according to a LexisNexis search, the Times didn't report either of these executive orders when they occurred.

I guess such issues aren't important when there's a Democrat in the White House.

The final blow came from the 'CBS Evening News.' As Brent Baker of the Media Research Center reported at NewsBusters, Congresswoman Jane Harman (D—California) made a surprising statement concerning NSA eavesdropping. According to CBS correspondent John Roberts:

"The President got support today from an unusual quarter: Democrat Jane Harman, a key figure on the House Intelligence Committee. 'I believe the program is essential to U.S. national security,' she said in a statement, 'and that disclosure has damaged critical intelligence capabilities.''

This is a major blow to the conspiracy theorists, for Harman is a highly regarded Bush antagonist that knows her stuff about national security issues. Any opinion from her that does not support the contentions that the administration has broken the law with this NSA strategy will severely weaken such an argument.

Granted, tomorrow is another day, and there's no way of telling what is lurking out there to stoke what appears to be waning fires of discontent. However, a few more days like yesterday, and this story could end up being 2005's 'Memogate.'

Noel Sheppard is an economist, business owner, and contributing writer to the Free Market Project.  He is also contributing editor for the Media Research Center's NewsBusters.org.  Noel welcomes feedback at nsheppard@costlogic.com.