Today’s Senate Judiciary Committee hearing on the NSA terrorist surveillance operation will utterly fail to address the two most important facts about it. Neither Attorney General Gonzales nor the senators questioning him will distinguish between a wartime intelligence gathering operation, which this is, and a broadly scoped peacetime law enforcement investigation, which this is not. And though it will shape the soundbites on which tonight’s newscasts will ride, the tension — no, the enmity — that governs the administration’s dealings with Congressional Dems will be displayed but not explained.
Last week, DNC Chairman Howard Dean said, “President Bush’s secret program to spy on the American people reminds Americans of the abuse of power during the dark days of President Nixon…” It is only the most fevered liberal brows and the willfully ignorant — in both of which categories Dr. Dean consistently fits — who can make such an irrational and irresponsible comparison. As Senate Intelligence Committee Chairman Pat Roberts (R-Kan) wrote to Dean on Friday, “Any suggestion that a program designed to track the movement, locations, plans or intentions of our enemy — particularly those that have infiltrated our borders — is equivalent to abusive domestic surveillance of the past is ludicrous. When Presidents John F. Kennedy and Lyndon B. Johnson approved the electronic surveillance of Martin Luther King, those Presidents were targeting American citizens based on activities protected by the First Amendment. When President Richard Nixon used warrantless wiretaps, they were not directed at enemies that had attacked the United States and killed thousands of Americans.” Unlike the Deanocrats, Roberts understands the differences between illegal searches that violate the Fourth Amendment and wartime intelligence gathering.
The NSA program is not intended to detect and punish past crimes. It is an intelligence program, designed — like every such signals intelligence program has been since a telegrapher rode with Confederate General J.E.B. Stuart’s cavalry to give Stuart the benefit of intelligence gleaned by tapping into Union lines — to discover the enemy’s plans. NSA isn’t wiretapping massive numbers of Americans’ private conversations. It is listening in only to conversations in which at least one party — and many times both — are outside the United States and have been identified as connected somehow to al-Qaeda. Senior Justice Department officials told me on Friday that the program is carefully limited to that, and excludes all else. What NSA is doing, under presidential order, is gathering intelligence by listening to al-Qaeda communications between and among its commanders and operators overseas as well as those people in the United States who talk to them.
The program, according to these officials, works by detecting where the calls originate (at least by country) even where, as in too many instances, a cell phone is used from abroad that has a U.S. area code and number. Many of the intercepted conversations only pass through American fiber-optic lines and switchboard exchanges and have no one in the territorial U.S. participating at all.
The NSA operation is not a violation of the Foreign Intelligence Surveillance Act because the president, as the courts have held, has the power to order warrantless surveillance of this type — outside of FISA — to gather intelligence. FISA is used, according to the Justice Department officials, whenever both sides to a conversation are in the United States.
FISA is an act of Congress. Because the president’s authority to order this surveillance is granted by the Constitution, an act of Congress cannot limit it. FISA, moreover, is unsuitable to combat terrorists because its requirement to demonstrate probable cause cannot often be met. The NSA program is not directed at gathering evidence admissible in a court of law. It’s directed at capturing, killing, or disrupting terrorists. As Attorney General Gonzales will testify today, “Congress and the American people are interested in two fundamental questions: is this program necessary and is it lawful? The answer to both questions is yes.” FISA is a peacetime tool. We are at war.
WHEN ANY HIGH-LEVEL TERRORIST is captured or killed, it is not unusual for his cell phone (or phones) and computer to be seized. On them is usually found both telephone numbers and e-mail addresses. To our armed forces, that is tactical intelligence, in actionable form. If your cell phone was on Khalid Sheik Mohammed’s speed dial, and you are in a place such as Afghanistan or Iraq, the good news is that you have by now been visited in the dark of night by some guys with painted faces who have killed you if they had to or grabbed you if they could and whisked you off to someplace such as Guantanamo Bay, Cuba for interrogation and confinement. The bad news, for you and us, is that if they couldn’t get to you, you have almost certainly reached the age of 16, as in F-16. And your intelligence is lost with you.
But the mere fact that your telephone number or e-mail address is found on a terrorist’s electronic accessories, by itself, would not constitute probable cause justifying a FISA warrant to tap your phone or read your e-mail. It may suffice if other evidence is known that connects you to terrorist operations. But the time it takes to assemble the evidence and seek a FISA warrant can be days or weeks. By the time the FISA court acts, the opportunity to gather the intelligence is probably gone. There had to be another option. The NSA program is it. The NSA is, according to the Justice Department officials, gathering a lot of useful, valuable intelligence. If the president hadn’t ordered it to do so, he wouldn’t have been complying with his oath of office to protect and defend the Constitution against all enemies, foreign and domestic.
Some critics, including some conservative pundits such as George Will, have condemned the president for failing to seek congressional action to expand or change FISA to allow it to be used more broadly. In 2004, the Bush administration considered asking for just such action. The reason it did not is a fact congressional leaders of both parties ignore at their peril, and ours.
As the Attorney General will testify today, and as he has already said in response to questions by Judiciary Committee Chairman Sen. Arlen Specter (R-Penn.), consideration of legislative action on FISA was put aside because “members of Congress advised the Administration that more specific legislation could not be enacted without likely compromising the terrorist surveillance program by disclosing program details and operational limitations and capabilities to our enemies.”
LOOSE CANONS HAS SAID, over and over again, that Congress is the source of leaks of many if not most of the top-secret information about the war on terror that has reached the press. The leak of the CIA terrorist detention centers in Europe and Asia probably came from the CIA. But the list of congressional leaks is long. Too long.
In December 2004, Loose Canons reported that Sens. Jay Rockefeller (D-W.Va.) — vice-chairman of the Senate Intelligence Committee — along with Sens. Dick Durbin (D-Ill.) and Ron Wyden (D-Ore.) were under criminal investigation for leaking a top-secret satellite program. Every indication is that the NSA program leak — which CIA Director Goss said last week significantly damaged national security — also came from the Hill. Leak after leak, as Loose Canons predicted more than a year ago, has reached a level that the executive branch cannot trust Congress to keep those secrets. And without that trust, Congress cannot be permitted to get the information that allows it to perform its constitutional oversight role. This is not, as Howard Dean insists, a rogue executive, out of control and violating the law. This is, as I will say again and again, a danger to our form of government that can only be met by the expulsion from Congress, and subsequent prosecution, of those members and staff who are responsible.
Today’s hearing will feature the high-strung posturing of Democrats who have yet to say anything constructive about winning this war. The Dems will pound on Gonzales for refusing to discuss more classified details of the NSA program. There will be misstatements, accusations, and hour after hour of dire predictions of the fall of the Republic if George Bush’s imperial presidency isn’t reined in. Republicans will try to ask supportive questions, and only confuse things further. The AG will do his lawyerly best, but because he can’t say much about the program, which remains highly classified, his answers will seem flat and desultory.
The Dems will earn their places on CBS, CNN and the rest tonight and in the New York Times tomorrow, which is their only goal. It would be far better for these senators and their Republican counterparts to clean their own house, and get on with their jobs. It’s their war too, even if many don’t seem to think so.p>
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