A Colloquy With the Times

Reporter Eric Lichtblau of the New York Times responded to the email I sent earlier today; we had the following exchange.

Me to Lichtblau:

Mr. Lichtblau, in your reporting in the Times you appear to have tried to create the impression that the NSA’s overseas intercept program is, or may be, illegal. I believe that position is foreclosed by all applicable federal court precedents. I assume, for example, that you are aware of the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001, where the court said:

“The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. *** We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”

In view of the controlling federal court precedents, I do not see how an argument can be made in good faith that there is any doubt about the NSA program’s legality. Therefore, I wonder whether you are somehow unaware of the relevant case law. If you know of some authority to support your implication that the intercepts are or may be illegal, I would be interested to know what that authority is. If you are aware of no such authority, I think that a correction is in order.

Thank you.

Lichtblau to me:

You must not have read to the end of our original story last Friday. It quotes from the FISA appellate decision that you cite.

Me to Lichtblau:

That’s great, but doesn’t answer the question. It seems to me that the import of the Times’ stories is to suggest that the NSA intercepts are, or may be, illegal. That implication is what gave your paper’s reports the quality of a “scoop.” Are you telling me that you knew all along that this wasn’t true, and the intercepts are clearly legal? If not, what are you telling me?

Thanks for responding.

Lichtblau to me:

I’d refer you again to our story. There’s an extensive section on the debate over whether the program was legal, including the FISA ruling you cite.

Me to Lichtblau:

Here’s my problem with your coverage: as a legal matter, there isn’t any debate. The authorities are all on one side; they agree that warrantless surveillance for national security purposes is legal. I think your articles misleadingly suggest that there is real uncertainty on this point, when there isn’t. Thus, for example, you write:

Some officials familiar with it say they consider warrantless eavesdropping inside the United States to be unlawful and possibly unconstitutional, amounting to an improper search. One government official involved in the operation said he privately complained to a Congressional official about his doubts about the program’s legality. But nothing came of his inquiry. “People just looked the other way because they didn’t want to know what was going on,” he said.

I don’t think you should be quoting anonymous “officials” making incorrect assertions about legal issues, while not pointing out that their assertions are wrong. (I would also note that the NSA intercepts are not “inside the United States.”) And I don’t think that a partial sentence from one of the controlling decisions, buried at the end of a long article and not repeated in subsequent articles, removes the incorrect impression you convey that the NSA program is, in all likelihood, illegal. Also, with all due respect, I think your treatment of the 2002 FISA case is itself misleading. While you do quote part of the key sentence, you go on to suggest that the court left the issue in a state of ambiguity by writing:

But the same court suggested that national security interests should not be grounds “to jettison the Fourth Amendment requirements” protecting the rights of Americans against undue searches. The dividing line, the court acknowledged, “is a very difficult one to administer.”

Those quotes had nothing to do with the court’s recognition of the President’s inherent power to surveil without a warrant to obtain foreign intelligence information, and did not in any way qualify the court’s clear holding on that issue. You plucked them from another part of the opinion. The “dividing line” the court referred to was the “primary purpose” test that was established by the Truong decision and changed by Congress in the Patriot Act. The court noted that the “primary purpose” test was difficult to administer, which it saw as an argument in favor of the constitutionality of its revision by Congress. Contrary to the implication of your paragraph, this had nothing to do with the President’s power to conduct warrantless surveillance.

In my opinion, you should not convey the impression to your readers that the NSA surveillance is likely illegal unless there is, at a minimum, a respectable argument, supported by legal authority, to that effect. Do you think there is such an argument? If so, what is it, and what is the authority?

Thanks again for responding.

Since I haven’t heard from Mr. Lichtblau for some time, I’m going ahead and posting the discussion we’ve had so far. I hope that Mr. Lichtblau will respond to my criticisms of the Times’ coverage in my last email; if so, I’ll post his answer. In any event, we greatly appreciate his taking the time to engage us in this conversation.

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