Misleading V. Factually False

Here's a good one: Alberto Gonzales says that criticism against The Administration's illegal NSA spying is "misleading:"

Gonzales cautioned his listeners about critics and journalists who have mischaracterized details about the program. "Unfortunately, they have caused concern over the potential breadth of what the President has actually authorized," he said.

The attorney general's appearance at the law school is part of a campaign by the Bush administration to overcome criticism, often by attempting to redefine the program.

On Monday at Kansas State University, Bush said the program should be termed a "terrorist surveillance program" and contended it has the backing of legal experts, key lawmakers and the Supreme Court.

As Atrios says, the fact that The Administration continually redefines what this program is and what it does, and the legality of it, without ever providing any explanation that satisfies the question of why they'd do something illegally, when they have every capability of doing it legally under the FISA court, comes down to this: they're up to something. They've been misleading us the whole time, and continue to distract and redefine without explaining.

Glenn Greenwald [again via Atrios] takes them to task in a piece titled "The Administration's new FISA defense is factually false:"

By that time, the Administration had already been engaging in eavesdropping outside of the parameters of FISA, and yet the DoJ itself was expressing serious doubts about the constitutionality of that eavesdropping and even warned that engaging in it might harm national security because it would jeopardize prosecutions against terrorists. Put another way, the DoJ was concerned that it might be unconstitutional to eavesdrop with a lower standard than probable cause even as the Administration was doing exactly that.

Two other points to note about this failed DeWine Amendment that are extremely important:

(1) Congress refused to enact the DeWine Amendment and thus refused to lower the FISA standard from "probable cause" to "reasonable suspicion." It is the height of absurdity for the Administration to now suggest that Congress actually approved of this change and gave it authorization to do just that -- when Congress obviously had no idea it was being done and refused to pass that change into law when it had the chance.

(2) DeWine's amendment would have lowered the standard for obtaining a FISA warrant only for non-U.S. persons -- whereas for "U.S. persons," the standard would have continued to be "probable cause." And, DeWine's amendment would not have eliminated judicial oversight, since the Administration still would have needed approval of the FISA court for these warrants.

That means that, in 2 different respects, DeWine's FISA amendment was much, much less draconian than what the Administration was already secretly doing (i.e., lowering the evidentiary standard but (i) eliminating judicial oversight, and (ii) applying these changes not just to non-U.S. persons but also to U.S. persons). Thus, Congress refused to approve -- and the DoJ even refused to endorse -- a program much less extreme and draconian than the Administration's secret FISA bypass program.

This has extremely significant implications for the Administration's claims made yesterday through Gen. Hayden as to why it was necessary to bypass FISA. The Administration's claim that the "probable cause" component of FISA was preventing it from engaging in the eavesdropping it needed is the opposite of what it told Congress when refusing to support the DeWine Amendment. And its claim that Congress knew of and approved of its FISA-bypassing eavesdrop program is plainly negated by the fact that the same Congress was debating whether such changes should be effectuated and then refused to approve much less extreme changes to FISA than what the Administration secretly implemented on its own (and which it now claims Congress authorized).

The Administration is stuck with the excuse given by Gen. Hayden yesterday as to why it had to eavesdrop outside of FISA, but that excuse is plainly contradicted by these events and by the Administration's own statements at the time.

[all emphasis is Greenwald's].

Atrios' wrap of up this:

He points out that in 2002 Senator DeWine proposed the legislation which would've amended the FISA law to lower the burden necessary from probable cause to reasonable suspicion (one caveat, for non-US persons only), precisely what our constitution-challenged former NSA head was claiming was why they "had to" break the law. He also claimed they sought such changes but Congress wouldn't give it to them.

The kicker? The Bush Justice Department opposed the law on constitutional concerns.

Let's recap the Bush talking points as they've been shot down.

The program was some super-technology thing! Not true.

The program was necessary because the FISA court doesn't allow them to act fast enough. Not true.

The program was necessary because Congress wouldn't let us lower the necessary burden . Not true - they opposed a similar measure themselves.


Once again, all we're left with is:

They wanted to spy on whoever they wanted to without any oversight or accountability.

That's it.

So which is it? Are we to belive the "misleading" criticism, or are we to believe the "facts" that Greenwald has presented- which state, simply, that the misleading party in this whole affair has been... yes...

The Administration.

Surprise, surprise.