Wolf D. Fuhrig

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Journalists Resisting Bush Pressure

Washington, D.C.    On December 16, The New York Times published information gathered by reporters James Risen and Eric Lichtblau about warrantless eavesdropping on Americans by the National Intelligence Agency (NIA). Subsequent reports spoke of "a data-mining system that collected and analyzed vast amounts of digitized data in an effort to find patterns that might identify potential terrorists." Washington Post columnist William Arkin was still more specific: "Massive amounts of collected data--actual intercepts of phone calls, e-mails, etc.--together with 'transaction' data--travel or credit card records or telephone or Internet service provider logs--are mixed through a mind-boggling array of government and private sector software programs to look for potential matches."

It appears that such technologically most advanced spying could be of immense value in defending the nation against its enemies. Why, howver, did the government have to run the operation in violation of the existing laws on search and seizure?

After frequently asserting that his administration's intelligence gathering was abiding by all applicable U.S. law, President Bush at last admitted that, to protect the nation from another terrorist attack, he had ordered the NIA to develop a comprehensive and secret intelligence gathering program. When the Times reported it, the President bluntly denounced the publication as "shameful."

Yet, from Newsweek's Jonathan Alter we now know that Mr. Bush had been talking with Times executive editor Bill Keller, publisher Arthur Sulzberger Jr., and Washington bureau chief Philip Taubman. None of the President's arguments, however, convinced the newspaper executives that revealing those potentially illegal NIA activities would endanger U.S. security and that the American people should not be told about the government's massive surveillance efforts. The Times actually held the story for more than a year after earlier meetings with administration officials.

In the meantime, the Justice Department tried to justify the N.I.A.'s warrantless interceptions of communications by Americans with sources abroad in a letter to the congressional intelligence committees. It argued that ordering domestic eavesdropping was within the President's "inherent" authority as commander-in-chief.

The Attorney General did not deny that he failed to advise the President against circumventing both Congress and the courts. While the courts did acknowledge the President's authority "to order warrantless foreign intelligence surveillance within the United States," they never authorized warrantless eavesdropping on American citizens.

To enable the President to keep necessary surveillance of American citizens secret, Congress had passed the Foreign Intelligence Surveillance Act (FISA) of 1978, which requires warrants from a secret court for national security surveillance and bans any surveillance not authorized by statute. Here again, the Attorney General failed to inform the President correctly about the availability of FISA for clandestine government operations.

Presidents of both parties have complied with FISA's terms and did not question its constitutionality. If one believes the incumbent Attorney General, the President's "inherent" authority allows him not only to eavesdrop on his fellow citizens in the absence of a statute but also to ignore existing statutes.

Given the President's failure to justify his unconstitutional initiatives for the warrantless surveillance of American citizens, one can only conclude that the media served the nation appropriately when they reported and debated the controversial facts, even ever so hesitantly.