Near the end of President Bush’s press conference yesterday, a reporter asked this question:
Q. In 2004, when you were doing an event about the Patriot Act, in your remarks you had said that any wiretapping required a court order, and that nothing had changed. Given that we now know you had prior approval for this NSA program, were you in any way misleading?
The reporter may have been reading left-wing web sites, many of which are buzzing about this latest “Bush lied!” claim. President Bush began his answer as follows:
I was talking about roving wire taps, I believe, involved in the Patriot Act. This is different from the NSA program.
I looked up the quote that the lefties are howling about; it’s from a speech in Buffalo on April 20, 2004. Bush’s description of the speech is accurate; its subject was the Patriot Act. Here is the section of the speech where the relevant quote occurs:
Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.
But a roving wiretap means — it was primarily used for drug lords. A guy, a pretty intelligen[t] drug lord would have a phone, and in old days they could just get a tap on that phone. So guess what he’d do? He’d get him another phone, particularly with the advent of the cell phones. And so he’d start changing cell phones, which made it hard for our DEA types to listen, to run down these guys polluting our streets. And that changed, the law changed on — roving wiretaps were available for chasing down drug lords. They weren’t available for chasing down terrorists, see? And that didn’t make any sense in the post-9/11 era. If we couldn’t use a tool that we’re using against mobsters on terrorists, something needed to happen.
The Patriot Act changed that. So with court order, law enforcement officials can now use what’s called roving wiretaps, which will prevent a terrorist from switching cell phones in order to get a message out to one of his buddies.
So what Bush told the reporter was correct. He was talking about the Patriot Act’s authorization of roving wiretaps. A roving wiretap, by definition, requires a warrant; “roving” actually refers to a type of warrant, not to a kind of wiretap. More broadly, when Bush said, “When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so,” the context was obviously domestic law enforcement, not international intelligence-gathering on terrorists. As far as is publicly known, the statement he made in Buffalo is true in that context.
Partisan sniping aside, the President’s key statement in his press conference yesterday was this one:
This is a limited program designed to prevent attacks on the United States of America. And I repeat, limited. And it’s limited to calls from outside the United States to calls within the United States. But they are of known — numbers of known al Qaeda members or affiliates.
If this description of the NSA program is correct–and, to my knowledge, despite a lot of innuendo, there is nothing in the published leaks to contradict it–it’s hard to see what the fuss is about. Indeed, it might be grounds for impeachment if the administration were not surveilling terrorists overseas, and following up on their calls into the U.S.
What I still don’t understand is how the limited program described by the President relates to the NSA’s long-time practice of scooping up vast numbers of communications, world-wide, and subjecting them to computer analysis to look for patterns suggesting, among other things, terrorist activity. During the Clinton administration the NSA’s surveillance (warrantless, of course) apparently included baby monitors. Is the Echelon program, or something like it, still going on? Has it been expanded and improved in the aftermath of September 11? I hope so.
UPDATE: The White House clarified today that Bush “meant to say calls going to and originating from the U.S. were being monitored.” Assuming that this merely means that calls coming into al Qaeda numbers were monitored as well as calls coming from those numbers, this makes no difference to any constitutional or statutory analysis.