MYTH: This illegal program has saved thousands of lives.

REALITY: Because the program is secret the administration can assert anything it wants and then claim the need for secrecy excuses its failure to document these claims, let alone reveal all the times the program distracted intelligence agents with dead ends that wasted resources and trampled individual rights. Moreover, according to investigative reports, "The law enforcement and counterterrorism officials said the program had uncovered no active Qaeda networks inside the United States planning attacks.‘ There were no imminent plots--not inside the United States,’ the former F.B.I. official said.’"[20]

Unfortunately, the Bush Administration has too often made claims that prey on Americans’ fears but are contradicted by the facts. To take just one example, the President claimed the Patriot Act led to charges against more than 400 terrorism suspects and 200 convictions on terrorism charges, a claim the Washington Post noted was “misleading at best.”[21] In fact, the Justice Department’s own data revealed that 39 people had been convicted of national security related crimes since September 11th but “[m]ost of the others were convicted of relatively minor crimes... that had nothing to do with terrorism.”[21] And many others where never convicted of doing anything wrong after being swept into terrorism investigations.

The only specific examples the administration has cited are inconclusive. First, it claimed that NSA surveillance led to plans by terrorists to set up a training camp on the West Coast, but it offered no evidence that its illegal spy program was necessary to uncover those plans and that it could not use court authorized surveillance to investigate them. Second, it claimed that the NSA surveillance helped prevent a plot to bring down the Brooklyn Bridge with a blowtorch, even though the administration previously claimed the Patriot Act prevented this.

Again, the Administration has offered no evidence that it would have failed to get a court order based on information linking the man to al Qaeda. The FISA court has declined only four out of the nearly 20,000 applications for search orders, and the government prevailed the only time it ever appealed to the FISA court of review.


MYTH: FISA takes too long.

REALITY: FISA allows wiretaps to begin immediately in emergencies, with three days afterward to go to court. Even without an emergency, FISA orders can be approved very quickly and FISA judges are available at all hours. The administration has argued about the need to move quickly to wiretap suspected terrorists, but the truth is that in any emergency, electronic surveillance of any suspected terrorist in the US can be started without getting advance approval from the FISA Court.

Originally, Congress provided the executive branch with one day of delay after such an emergency, to send someone to court to ask for approval but in 2001, at the administration’s request, Congress extended the delay to three days.[23] This provision of FISA obviously provides the administration with speed and agility, but it does require an after-the-fact check from the court. This procedure comports with the long-standing interpretation of the Fourth Amendment’s requirements. The FISA court, like every federal court in the country, also has emergency procedures and practices that allow it to be accessed for orders day and night by federal agents. In fact, in the most recent statistics, the FISA Court approved 1,758 surveillance applications in 2004, an all-time high–without denying a single application. If the court needed more judges to handle more applications for surveillance orders, the solution would be for Congress to expand the courts’ budget, not for the president to bypass the courts and this independent oversight.


MYTH: Only liberals disagree with the president about the program.

REALITY: The serious concerns that have been raised transcend party labels and reflect genuine and widespread worries about the lack of checks on the president’s claim of unlimited power to illegally spy on Americans without any independent oversight. Even some people involved in administering the program were troubled enough to try to inform Congress about it and, failing that, to tell the New York Times.

And numerous Republican Senators have expressed strong concerns about the program including Senators Chuck Hagel (R-NE), Olympia Snowe (R-ME), Arlen Specter (R-PA), Richard Lugar (R-IN), Susan Collins (R-ME), John Sununu (R-NH), Larry Craig (R-ID), Lindsey Graham (R-SC), and John McCain (R-AZ). Numerous conservative leaders like former Congressman Bob Barr, Grover Norquist, David Keene, Paul Weyrich and other principals in Patriots to Restore Checks and Balances, along with former officials like Judge William Sessions—who served as the Director of the FBI under President Reagan—Bruce Fein and former Nixon White House Counsel John Dean, have spoken out against the program. Conservative or libertarian scholars have expressed strong concerns, such as the American Enterprise Institute’s Norm Ornstein, CATO’s Robert Levy, and Chicago’s Professor Richard Epstein, as well as noted columnists like William Safire, George Will, and Steve Chapman. These voices join a chorus of concern from progressive leaders.

Unfortunately, the president’s State of the Union address sets up a false choice: accept this illegal spy program or sit back and wait to be hit again. As some in the FBI have noted, this program has wasted time and precious resources on dead ends. The law already permits the government to obtain a court issued wiretapping order that allows it to eavesdrop on those suspected of aiding al Qaeda. These court procedures are intended to protect against eavesdropping on innocent Americans. Every dollar spent on wild goose chases takes away resources from focusing on al Qaeda operatives. In short, this program makes us less safe and less free. And the program plainly violates the clear language and intent of FISA, and it is inconsistent with Americans’ fundamental First and Fourth Amendment rights.[6] 24 50 U.S.C. ‡ 1805.