How has every network news show and most mainstream reporting and commentary labeled Bush's NSA surveillance program? Domestic spying. Except it may involve few if any calls that took place in the United States at all. How do we know? Just read James Risen. That's right, the New York Times reporter who broke the story in advance of his book State of War. Excerpting the book, lawprof Orin Kerr at the Volokh Conspiracy suggests strongly that "most of the new surveillance program was not about domestic surveillance at all; most of it was about the surveillance of entirely international calls and e-mails that just happened to be routed through U.S. networks in the course of delivery." Kerr is hardly a Bush apologist. In this follow-up post, Kerr says he still can't decide whether the program violates the law. (I'm with him, and with today's editorial in the Rocky Mountain News -- I don't work there yet -- which suggests that if the law had to be broken to keep the program going, it's time to revisit the law.)
But media reports have clearly misrepresented how many communications were intercepted within U.S. territory -- abetted, I must say, by the Times and by Risen himself, who continues to claim that the leakers were righteous whistle-blowers and that the program is an outrage. I'm willing to bet a substantial amount of money the MSM will never willingly acknowledge the distinction between intercepting phone calls within the United States and snooping on international calls that route through U.S. networks. Nor will they drop the "domestic spying" shtick.
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