The Progess Report

OCTOBER 16, 2007

by Faiz Shakir, Amanda Terkel, Satyam Khanna, Matt Corley, Ali Frick, and Jeremy Richmond Contact Us | Tell-a-Friend | Archives | Permalink

JUSTICE

Rationalizing Incompetence

Conservatives on Capitol Hill are gearing up for a fight this week over proposed changes to the Foreign Intelligence Surveillance Act (FISA) that would restore court oversight to the administration's wiretapping program. In an effort to grant the Bush administration broad, unchecked wiretapping authority, conservatives are planning to use the kidnapping and subsequent murder of three U.S. soldiers in Iraq earlier this year to put a "human face" on the issue. Last month, Director of National Intelligence Mike McConnell told Congress that "a May wiretap that targeted Iraqi insurgents was delayed for 12 hours by attempts to comply with onerous surveillance laws, which slowed an effort to locate three U.S. soldiers who had been captured." Further examination of the incident following McConnell's testimony, however, showed that FISA requirements had nothing to do with the administration's inability to rescue the soldiers. Nevertheless, conservatives seem intent on distorting the facts to use the kidnapping of these soldiers for their own political agenda.

INCOMPETENCE AT THE JUSTICE DEPARTMENT: On May 12, 2007, U.S. army soldiers Alex Jimenez, Joseph Anzack, and Byron Fouty were abducted in Iraq when insurgents attacked a military outpost in Baghdad. Three days later, at approximately 10:52 AM, "the NSA notified the Department of Justice of its desire to collect some communications that required a FISA order." Surveillance did not begin until almost 8 PM that evening. In his testimony, McConnell attributed the delay to problems with FISA. But the delay in obtaining the order can be traced to red tape and incompetence within the Bush administration. Alberto Gonzales's Justice Department, filled with inept political cronies, wrestled with "novel legal issues" that it was not prepared for, creating a four-hour delay. Under FISA, the administration could have obtained an emergency warrant to allow for immediate surveillance of the target. This required only a senior official to sign off on the wiretap. Mired in scandal, Gonzales was speaking to a group of U.S. attorneys and could not be reached. "Deputy AG Paul McNulty had resigned already; Solicitor General Paul Clement 'had left the building'; and the other responsible official, Assistant Attorney General Kenneth Wainstein, was not yet authorized to approve the emergency order." Wainstein had in fact been authorized by FISA to sign emergency warrants, but the "Justice Department had not yet altered its own internal regulations to allow him to do so." As a result, it took over two hours to find someone who had the authority to sign the emergency warrant.

CONSERVATIVE RHETORIC: Despite McConnell's version of events having been thoroughly discredited, conservatives are getting ready to recycle the information to fight the proposed changes to FISA. The New York Post embraced the conservative PR campaign and published a politically-charged article reiterating the conservatives' talking points. The New York Post writes, "U.S. intelligence officials got mired for nearly 10 hours seeking approval to use wiretaps against al Qaeda terrorists suspected of kidnapping Queens soldier Alex Jimenez in Iraq earlier this year.... 'The intelligence community was forced to abandon our soldiers because of the law,' a senior congressional staffer with access to the classified case told The Post." Other conservative news outlets have also been following the right-wing script. Shepard Smith insinuated on Fox News yesterday that FISA was ultimately responsible for the deaths of the three soldiers. In response, members of Congress who support the changes to FISA are accusing the administration of a "cynical and transparent attempt to use the lives of American servicemembers for partisan political gain." Silvestre Reyes (D-TX), chairman of the House intelligence committee, wrote yesterday that the RESTORE Act would "eliminate the requirement to obtain an individual warrant, based on probable cause, for targets outside the U.S." This means that the so-called "problem" Gonzales's Justice Department faced would be remedied by the very bill against which conservatives are rallying.

BUSH MISLEADS PUBLIC: This is not the first time that conservatives have lied about the wiretap program to further their own political agenda. In court documents released last week, former Qwest CEO Joseph Nacchio revealed that "the NSA approached [the telecom firm] Qwest more than six months" before 9/11 "about participating in a warrantless surveillance program to gather information about Americans' phone records." Bush has long insisted that the wiretapping program was put in place in a response to 9/11. As recently as last year, he said that "after September the 11th, I vowed to the American people that our government would do everything within the law to protect them against another terrorist attack. As part of this effort, I authorized the National Security Agency to intercept the international communications of people with known links to al Qaeda and related terrorist organizations." The fact that the Bush administration had the wiretapping program in place before 9/11 suggests that Bush has been misleading the American people about the origins of the program. It also shows that his wiretap program "objectively failed to prevent 9/11."