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Pretzel logic on the Big Story

Reported by Chrish - December 28, 2005

David Asman subbed for vacationing John Gibson on the Big Story today 12/28/05. Guests Victoria Toensing (co-author of the toothless law that protects the White House staff who burned Valerie Plame) and David Smith, defense attorney for self-confessed bomber wannabe Iyman Faris, ostensibly discussed the legality of Bush's wiretapping authorizations.

Asman addressed Smith first, asking if his client wasn't a perfect example of who the government should be wiretapping. Smith replied sure, as long as it's done legally, and in his opinion it wasn't. Asman deliberately confused the issue by introducing another definition of the word, saying that it was warranted, i.e. justified, when he knew Smith was calling the spying unwarranted meaning done without a proper judicial warrant. Faris is appealing his case because his previous attorney did not determine if evidence was acquired through wiretaps, claiming his representation wa ineffective.

Asman turned to Toensing, asking if it was warranted in the legal sense. She prefaced her answer by saying that it's ironic that someone (Faris) who has admitted to plotting to blow down the Brooklyn Bridge is the type of person whose activities most Americans hope our government was keepng on top of. Speaking legally, she would be surprised if he were surveilled under the FISA program and presumably was tapped under T3 (criminal) warrants. If he was wiretapped under FISA, for the sake of argument, it would only be a legal issue in his appeal IF the information garnered was relevant to his prosecution.

She turns the discussion to Smith's case specifically, saying it is a moot point since Faris pleaded guilty, comparing him to Aldrich Ames* and saying they both waived the FISA issue when they pled guilty.

Asman then uses an incomplete sentence, really nothing more than a phrase, to "make" his point that Bush did nothing illegal:

"But Victoria, even under FISA, section 1802 which I'm sure you're familiar with, which says 'electronic surveillance authorization without a court order' so even under FISA it does provide the opportunity occassionally to have eavesdropping without a court order."

He is not the first right-wing media spokesperson to trot out this piece of law. As has been explained and debunked on Media Matters, this exception does not apply to what Bush has authorized because it specifically excludes Americans in the United States: "(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party..." By all means, read the whole thing yourselves.

Toensing declined to answer if that was legall if it was done to Faris, saying she didn't know where he was and didn't have all the facts. Smith says he plans to make the case that Faris was surveyed under thie secret NSA program, not within the parameters of the FISA law which allow warrantless wiretaps but require warrants issued after the fact. Toensing again brings up the issue that Aldrich Ames pled guilty and thereby waived his right to protest Bill Clinton's warrantless searches of his home (*2nd time BC is brought up for justification/comparison - the "he did it first" variation of the "everybody does it" excuse.) Smith says his client has a different case, that of ineffective counsel, and Toensing says "Well good luck with that."

Asman asks, isn't he glad Faris was caught before he blew up the bridge? Smith says, if that's what he did, and Asman erupts "He admitted it!" Smith says, believe it or not, there are grave doubts that he ever surveyed the Brooklyn Bridge at all. Asman is muttering, all right...." and Toensing says, are you saying he lied in court? and Smith surprises her by saying "It's entirely possible." She says well, that's another interesting issue, isn't it? and Asman ends the segment.

Comment: The subject just slip-slided away, from the contested legality of Bush's actions, to the outcome of wiretapping in one specific case, but with the added twist that illegal wiretapping was not part of the prosecution. Are we confused yet? Be prepared to see other examples trotted out to prove that the spying has resulted in convictions, even if it hasn't. It has had good results, but he really didn't do it. They're defending the use of illegal tactics with "ends justify the means" case studies, while simultaneously denying anything illegal took place.

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