Nat'l Rev's Rich Lowry misrepresents NSA spying case

By Lee Russ

Wednesday, January 11, 2006 at 05:24 PM

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For a magazine that likes to think it has an educated, intelligent readership to enlighten, National Review sure has some questionable thinkers on staff.

Editor Rich Lowry comes to mind.  Just about every one of the admittedly few Lowry pieces that I've read have gaping holes in the logic and/or facts.  Lowry took another shot last week at defending the NSA warrantless surveillance program in a piece titled "FISA Fallacies, Bush's unconstitutional critics".

Lowry's technique, not surprisingly, is an attack on those of us who have attacked the president's spying program.  Essentially, Lowry:

1. Probably misstates the nature of the NSA program, which he describes as a program "to monitor, without court approval, calls between suspected al Qaeda operatives overseas and people in the United States."  That's all they're doing huh?  And we know that how, since there is no court oversight and the administration refuses to describe the actual program?  Excuse me for not taking them at their word, given recent evidence indicating that both NSA and the Department of Defense have their collective eyes on dissidents, protesters, and other folks who don't like the current drift of the country.

2. Tries to portray us pesky protesters and objecting legislators as being violators of the constitution, on the theory that the constitution gives the president the power to conduct this warrantless surveillance, so by attempting to limit that power, we are acting contrary to the constitution.

3. Tries to portray Judge James Robertson, who just resigned from the Foreign Intelligence Surveillance Court in protest of the NSA program, as someone who was found by a higher court to "have probably violated the constitution."  Unfortunately for Lowry, that's not what the Appeals Court said--see the next item.

4. Misrepresents the meaning and scope of a decision from the UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW.  The case is Sealed case number 02-001 dated November 18, 2002 (the link is to a full text version; it's lengthy and...well it's a court opinion).  Lowry, ignoring the real issue in the case, quotes the opinion's language that "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information."

But the issue the court is talking about there is a fairly technical and narrow point: does spying on foreign agents have to be the primary purpose of the surveillance in order to be within the president's inherent authority, or is it okay if spying on foreign agents is simply one purpose, along with the attempt to gather information to be used in a criminal prosecution?  

That's the sole point in the case. It doesn't address spying on Americans.  It doesn't address how we could ever ensure privacy when a spying program targets both foreign agents and Americans, and has no provision for objective oversight by a court to make sure the government is doing what it says it's doing. Read it and see for yourself.

So how does Lowry, a graduate of the U of Virginia, a former research assistant to Krauthammer, and NR editor since 1997, miss that obvious point?