Even on Christmas, Jack Kelly distorts

Take a look at today's P-G. In it there's yet another defense of the increasingly indefensible Bush Administration by National Security correspondent Jack Kelly. Too bad much (if not all) of it is just crap.

Basically his argument can by summed up with this:

A grave crime was exposed Dec. 16 when New York Times reporters James Risen and Eric Lichtblau published a story revealing President Bush authorized the National Security Agency to listen in on conversations between al-Qaida suspects abroad and people in the United States without first obtaining a warrant.

"We're seeing clearly now that [President] Bush thought 9/11 gave him license to act like a dictator," wrote Newsweek's Jonathan Alter.

But the scandal was not the program Mr. Risen and Mr. Lichtblau wrote about. The scandal is that they wrote about it.

This is a typical Kelly response. Odd, though - coming as it does from an employee of a newspaper.

In writing this, Kelly makes a number of distortions. He trots out this well-worn quotation:

"The Department of Justice believes, and the case law supports, that the president has the inherent authority to conduct warrantless physical searches for foreign intelligence purposes," said Jamie Gorelick, deputy attorney general under President Clinton, in testimony to the Senate Intelligence Committee on July 14, 1994.

"It's important to understand that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities," she said.

First off, take a careful look at what Gorelick said. She said that:

"...the president has the inherent authority to conduct warrantless physical searches for foreign intelligence purposes..." [emphasis added]

Can someone please tell Jack Kelly that that that's not what Bush ordered the NSA to do? There's a huge difference between a physical search and an electronic search. Or doesn't the P-G's "national security correspondent" understand this?

In any case when Gorelick testified in July of 1994, FISA did not cover physical searches at all. So to use this quotation to support the claim that Bush's use of the NSA is not "unprecedented" because Clinton also did it, is plainly dishonest.

But Kelly does more damage to his own credibility. Let's take a look at Gorelick's actual testimony that day:

At the outset, let me emphasize two very important points. First, the Department of Justice believes, and the case law supports, that the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the President may, as has been done, delegate this authority to the Attorney General.

But this follows immediately:

Second, the Administration and the Attorney General support, in principle, legislation establishing judicial warrant procedures under the Foreign Intelligence Surveillance Act for physical searches undertaken for intelligence purposes. However, whether specific legislation on this subject is desirable for the practical benefits it might add to intelligence collection, or undesirable as too much of a restriction on the President’s authority to collect intelligence necessary for the national security, depends on how the legislation is crafted.

Whah??? The Clinton Administration supported legislation establishing warrant procedures for physical searches under FISA? Jack Kelly carefully omitted that part, didn't he? And take a look at what he else quotes from Gorelick's testimony. Right after his first paragraph, he goes with this:

"It's important to understand that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities," she said.

The implication is that it happened right after after the first paragraph (we already know that that's not true). Where does it come from in Gorelick's testimony? It's a couple of paragraphs away. Now take a look at the context:

That being said, the Department of Justice believes that Congress can legislate in the area of physical searches as it has done with respect to electronic surveillances, and we are prepared to support appropriate legislation. A bill that strikes the proper balance between adequate intelligence to guarantee our nation’s security, on one hand, and the preservation of basic civil rights on the other will be an important addition to our commitment to democratic control of intelligence functions. Such a bill would also provide additional assurances to the dedicated men and women who serve this country in intelligence positions that their activities are proper and necessary.

In considering legislation of this type, however, it is important to understand that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the President in carrying out his foreign intelligence responsibilities.

Please note, Jack, that Gorelick made a distinction between physical searches and electronic searches. Something you did not when you were selectively quoting her.

The legislation incorporating physical searches into FISA was passed in 1995 and from that point on, the Clinton Administration did not hold that it had the "inherent authority" to do the searches you claim it claims.

By the way, electronic searches were restricted by FISA since it's inception. Another thing you failed to inform your readers.

Next thing he uses is a New York Times article from 1982. He writes:

Mr. Risen and Mr. Lichtblau chose not to mention the following story, which appeared in The New York Times on Nov. 7, 1982: "A federal appeals court has ruled that the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agents, and then provide summaries of these messages to the Federal Bureau of Investigation."

This was new to me. It took a few minutes to find out that Jack Kelly is referenceing Jabara v Webster (sorry about the cache search - it's all I could find). Unfortunately I think the NYT got it wrong on this one. I am not a lawyer, but if I am reading the decision correctly, the circuit court overturned a lower court ruling about Mr Jabara's claim that the FBI violated his 4th Amendment rights in receiving the messages intercepted by the NSA. This is from the decision:

On November 1, 1971, the FBI, without a warrant, requested the NSA to supply it with the contents of Jabara's telegraphic communications sent overseas, and the NSA complied by furnishing the FBI with summaries of six of such communications.

Defendants contend that the fourth amendment does not apply to and limit NSA's gathering of foreign intelligence. They also contend that, in any event, the facts surrounding the acquisition by the NSA of overseas telegraphic communications such as those sent by Jabara are subject to the state secret privilege.

Jabara, however, does not even contend on this appeal that the interception by the NSA violated his fourth amendment rights; we may therefore take as a given that the information was legally in the hands of the NSA. What Jabara does contend, and the district court agreed, is that his rights were violated when the NSA turned over the information, without a warrant, to the FBI. Defendants, on the other hand, contend that, since the NSA had lawfully intercepted and had made a record of the content of Jabara's communications, the fourth amendment was not implicated when the FBI requested and obtained the summaries from the NSA. This is so, defendants contend, because there simply was no "search" or "seizure" when this information was turned over to another agency of the government. [emphasis added]

As far as I can tell, the 6th Circuit Court overturned the lower court ruling because that lower court used a too narrow definition of what was relevant and necessary information for the FBI to use to ask the NSA for the searches. I could be wrong, though. I'll wait for the legal types to chime in on this one (anyone with any legal insight on this, please e-mail me).

But since Jabara himself didn't assert in this case that his 4th Amendment rights were violated by the NSA, I can't see how this decision can be used to "prove" that Bush didn't violate the 4th Amendment by ordering the NSA to conduct warrantless searches of American Citizens.

It's that last phrase that tells the tale of Jack Kelly's lies. Check out these paragraphs:

Even the feckless Jimmy Carter issued on May 23, 1979, an executive order authorizing the attorney general "to approve electronic surveillance to acquire foreign intelligence information without a court order." President Carter cited as the authority for issuing his order the Foreign Intelligence Surveillance Act that Congress had passed the year before, and which Mr. Alter and other hyperventilating hypocrites claim President Bush has violated.

In a 2002 case, the Foreign Intelligence Surveillance Court of Review -- the special court that hears appeals in FISA cases -- said the president "did have inherent authority to conduct warrantless searches to obtain foreign intelligence information."

First off, we've already posted on Carter's executive order (here). Gee Jack, I thought you read this blog - my mistake. But take a look at Kelly's text. Nowhere in there is there the phrase "American citizens" or "United States Citizens." The order that Carter signed allowed the AG to conduct those searches as long as he was able to certify that no US Citizens were being surveilled.

Again the issue is not "warrantless searches" but "warrantless searches against US citizens."

Any time you hear someone say it's the former and not the latter, tell them they're lying.

Jack Kelly - you're lying.