Think Progress

The Moussaoui Myth

One of the big arguments advanced by the right is that Bush’s warrantless domestic spying program could have prevented 9/11. The Washington Post gave Bill Kristol and Gary Schmitt space to make this argument on December 20:

Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI’s attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don’t rise to the level of probable cause under FISA.

One problem: Kristol and Schmitt are completely wrong. Coleen Rowley, a former FBI agent who testified before the Senate Judiciary Committee in 2002, wrote into the Washington Post to correct them:

[N]o evidence of Moussaoui’s suspicious flight training and ties with terrorism was presented to the Justice Department. The department was never contacted and so did not decide anything; therefore, no decision was ever made regarding the given evidence and its subsequent application to FISA standards.

That means the FISA procedures were not the reason the FBI failed to inspect Moussaoui’s computer files. Rather, the FBI’s failure to share and analyze intelligence sufficiently is what enabled Moussaoui to escape further investigation.

Kristol and Schmitt conclude their op-ed sanctimoniously: “to engage in demagogic rhetoric about ‘imperial’ presidents and ‘monarchic’ pretensions, with no evidence that the president has abused his discretion, is foolish and irresponsible.”

The law, even for the President, is not discretionary. What’s foolish and irresponsible is to use phony evidence to advance outlandish claims in one of the nation’s most widely read newspapers.

UPDATE: Rowley posted the unabbreviated version of her letter on The Agonist.

UPDATE II: Gary Schmitt responds in the comments by referrencing this blog post. It’s just as innaccurate and misleading as the original column.

Hinderaker: Everyone’s Favorite Conspiracy Theorist

John Hinderaker, who writes at the popular right-wing blog Powerline, is losing it:

[T]he [Washington] Post’s reporters are part of a lavishly funded and monolithic media effort to misreport the Iraq war for the purpose of bringing down the Bush administration.

In fact, the Post’s editors enthusiastically supported the Iraq war. Here’s an excerpt from a February 5, 2003 editorial:

[T]he United States should lead a force to remove Saddam Hussein’s dictatorship and locate and destroy its chemical and biological weapons and its nuclear program. The Iraqi regime poses a threat not just to the United States but to global order

Washingtonian Magazine described the Post as “The Nation’s Most Hawkish Newspaper.”

Liberal conspiracy theorists are (correctly) marginalized. Right-wing conspiracy theorists like Hinderacker are celebrated. Hinderaker’s blog, Powerline, was named “Blog of the Year” by TIME Magazine in 2004. He is also a regular guest on CNN.

Can someone explain why, exactly, Hinderaker is still taken seriously?

Federalist Society Board Member Argues Bush’s Surveillance Program Is Illegal

The right-wing spin machine wants you to believe that critics of the Bush’s warrantless domestic spying program are all liberals. Here’s Bill Kristol in the most recent issue of the Weekly Standard:

[L]iberals recoil unthinkingly from the obvious fact that our national security requires policies that are a step (but only a careful step) removed from ACLU dogma.

Actually, there are many very conservative people who vigorously oppose the program. For example, constitutional scholar Robert Levy — who is a board member at the right-wing Federalist Society — is an outspoken critic. The Federalist Society recently posted a Q&A with Levy on their website. Here are some highlights:

– The text of FISA §1809 is unambiguous: “A person is guilty of an offense if he intentionally engages in electronic surveillance … except as authorized by statute.”

– I know of no court case that has denied there is a reasonable expectation of privacy by U.S. citizens and permanent resident aliens in the types of wire communications that are reportedly monitored by the NSA’s electronic surveillance program.

– [I]n FISA §1811, Congress expressly contemplated warrantless wiretaps during wartime, and limited them to the first 15 days after war is declared.

Levy makes a powerful case and he’s not alone. Other prominent conservatives who have criticized the program include Sen. Arlen Specter (R-PA), Sen. Lindsey Graham (R-SC), conservative columnist George Will, former Reagan deputy Attorney General Bruce Fein and AEI scholar Norm Ornstein.

Misinformation On Spying Doesn’t Take A Holiday

National Review’s Mark Levin “informs” his readers today:

Clinton bypassed FISA by extending warrantless searches to include physical searches.

Levin is referring to Clinton’s 2/9/95 executive order and his claim is totally false. First, FISA didn’t cover physical searches at the time, so the executive order did not, and could not, “bypass FISA.” Second, unlike the secret Bush administration program, Clinton’s public executive order did not apply to U.S. persons. If Bush’s program didn’t apply to U.S. persons there would be no controversy at all.

But Levin doesn’t have to read Think Progress to figure this out. He can read his own right-wing magazine. Here’s the National Review’s Byron York five days ago:

In the argument that has emerged over warrantless surveillance, there have been a number of overstatements. Some people, for example, have said that Bill Clinton signed an executive order authorizing such surveillance; he did not.

One clarification: when someone says something that’s not true, it’s not an overstatement, it’s a lie.