May 16, 2008
On the May 14 edition of NBC’s Today, during an interview with former CIA agent Michael Sheehan about his new book, Crush the Cell: How to Defeat Terrorism Without Terrorizing Ourselves (Crown, May 2008), host Matt Lauer said, "You say we’ve got to use more undercover agents, informants, wiretapping, email surveillance, the works. The sound you just heard, Michael, is the far left, grabbing for their remote controls, ’cause they say, you’re going to do this, you’re going to trample civil liberties." In fact, despite Lauer’s suggestion that it is only "the far left" that is concerned about "trample[d] civil liberties," Americans across the political spectrum have denounced the Bush administration for alleged violations of civil liberties, including conservatives such as former congressman (and current Libertarian Party presidential candidate) Bob Barr, former Reagan administration associate deputy attorney general Bruce Fein, other members of the conservative American Freedom Agenda, and members of the libertarian Cato Institute.
In addition, Lauer did not challenge Sheehan’s assertion that the wiretapping and investigative authorities of the CIA, FBI, and NYPD have not "been abused over the last seven years." Sheehan stated: "What you need is good oversight involved. You need oversight within the agencies; you need congressional oversight; oversight from the press — and make sure that when we give our CIA or FBI or NYPD the authority to do wiretaps or do investigations, that they’re not going to abuse it. I don’t think it has been abused over the last seven years." Lauer did not point to any of the reports of abuses of authority by the Department of Justice inspector general or to the reports of dissent from within the administration regarding the warrantless domestic surveillance program run by the National Security Agency (NSA).
As Media Matters for America has noted, in a March 2007 report, the Justice Department inspector general (IG) found many "instances of illegal or improper use of national security letters [NSLs]" by the FBI between 2003 and 2005. NSLs, the report explains, "are written directives to provide information" and "are issued by the FBI directly to third parties such as telephone companies, financial institutions, Internet service providers and consumer credit agencies, without judicial review." The IG’s report stated that its investigation "found that the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies" and identified multiple ways that the FBI had done so.
Further, the report also found that the FBI acquired information in some cases without obtaining grand jury warrants or even issuing NSLs. As The Washington Post reported in a March 9, 2007, article:
The inspector general’s report discloses that on 739 occasions, the FBI obtained telephone toll or subscriber records without first having a required national security letter or grand jury subpoena, according to an unclassified version. Instead, the report says, the FBI used a tactic called "exigent letters" that claimed there were emergencies that warranted getting the information immediately. Many times, no such emergencies existed, the inspector general found.
"On over 700 occasions the FBI obtained telephone billing records or subscriber information from three telephone companies without first issuing national security letters or grand jury subpoenas," the report says. It notes that many times the FBI supervisors who approved such requests did not even have the legal authority to sign national security letters.
The IG report stated that the FBI’s use of such "exigent letters" "circumvented the ECPA [Electronic Communications Privacy Act] NSL statute and violated the Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection (NSI Guidelines) and internal FBI policy."
Lauer also could have pointed to reports of dissent within the Bush administration over the legality of the NSA’s domestic surveillance activities. In their December 16, 2005, New York Times article on NSA "eavesdropping," Times reporters Eric Lichtblau and James Risen wrote: "Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation’s legality and oversight."
In one previously undisclosed episode, [then-]Deputy Attorney General Larry Thompson refused to sign off on any of the secret wiretapping requests that grew out of the program because of the secrecy and legal uncertainties surrounding it, the officials said. With the veil of secrecy around the program, Mr. Thompson was not given access to details of the N.S.A. operation, and he was so uncomfortable with the idea of approving this new breed of wiretap applications that he had a top adviser write a memorandum assessing the legal ramifications. The adviser warned him not to sign the warrant applications because it was unclear where the wiretaps were coming from.
In addition, as Media Matters documented, Lichtblau and Risen reported on another instance of dissent over the NSA program in a January 1, 2006, Times article. Lichtblau and Risen noted that in March 2004, then-Deputy Attorney General James Comey was serving as acting attorney general while then-Attorney General John Ashcroft was in the hospital. Lichtblau and Risen reported that Comey objected strenuously to the continuation of the NSA program, prompting Andrew H. Card Jr., then the White House chief of staff, and Alberto R. Gonzales, White House counsel at the time, to visit Ashcroft’s hospital room to obtain Department of Justice approval for "aspects of the National Security Agency’s domestic surveillance program." At a May 15, 2007, Senate Judiciary Committee hearing, Comey testified that after the hospital meeting, the program under discussion at the hospital "was reauthorized without us and without a signature from the Department of Justice attesting as to its legality." He also said of the attempt to get Ashcroft to sign off on the program: "I was very upset. I was angry. I thought I just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general because they had been transferred to me."
Concerns over the legality of the domestic surveillance program also reportedly extended to members of the judiciary. Lichtblau reported in a January 10, 2006, Times article that "the Justice Department held an unusual closed-door briefing Monday for judges on a secret foreign-intelligence court in response to concerns about President Bush’s decision to allow domestic eavesdropping without warrants." He added that Judge Colleen Kollar-Kotelly, the presiding judge of the Foreign Intelligence Surveillance Court (FISC), "raised objections in 2004 to aspects of the program and instructed for a time that no material obtained by the N.S.A. without warrants could be presented to the court in warrant applications." In addition, according to media reports, Judge James Robertson resigned from the FISC in December 2005 in protest of the NSA’s eavesdropping program.
From the May 14 edition of NBC’s Today:
LAUER: The third point — and this is really the crux of your book here — is that: "Only spying works." And when you talk about spying, let me just go through some of the things you call for — demand. You say we’ve got to use more undercover agents, informants, wiretapping, email surveillance, the works. The sound you just heard, Michael, is the far left, grabbing for their remote controls, ’cause they say, you’re going to do this, you’re going to trample civil liberties.
SHEEHAN: Well, I hope not, and actually, I believe very firmly you can do both. What you need is good oversight involved. You need oversight within the agencies; you need congressional oversight; oversight from the press — and make sure that when we give our CIA or FBI or NYPD the authority to do wiretaps or do investigations, that they’re not going to abuse it.
I don’t think it has been abused over the last seven years. And even when President Bush pushed the NSA wiretapping thing, I think as people began to understand what he was doing, they became — they understood it more. It’s just the way he went about it. I think if we have a little bit more dialogue between the executive branch and the Congress with the American people, we can get through that.
LAUER: And it takes us to the title of you book, which is Crush the Cell, and your thought here is, once you see a cell forming, you break it up before that gang has a chance to dream big.
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