Category: NSA / FISA

Bring on the changeyness and the hopeitude!: A closed-door caucus of House Democrats last Wednesday took a risky political course. By four to one, they instructed Speaker Nancy Pelosi to call President Bush’s bluff on extending …

Glenn Greenwald, in full crow, writes of the re-connection of the President and FISA over the (remarkably) controversial NSA surveillance program:

For those people (as opposed to the Bush followers who support anything the administration does no matter what and cheer on any expansion of power), this is going to be a hard pill to swallow and then digest. There is simply no way to reconcile (at least honorably) the adminsitration’s prior insistence that our security depended upon eavesdroppping outside of FISA with their sudden willingness to comply with it (now that [...] the Democrats control Congress).

And indeed, if the initial reactions of stalwart administration supporters like Captain Ed and Mark Levin are any indication, one would almost certainly have to agree with him.

Writes Captain Ed:

[...] my point can be found in the letter [AG] Gonzales sent to the committee:

In the spring of 2005—well before the first press account disclosing the existence of the Terrorist Surveillance Program—the Administration began exploring options for seeking FISA Court approval.

This is my point, here. It’s not that the program has ended; it obviously will continue. My anger is over the fact that the Bush administration insisted on two points: one, that the FISA court would not cooperate on streamlining the process for warrants on these intercepts, and the second that the Bush administration had the authority to proceed without it. They took everyone along for a big ride, making all sorts of legal arguments about the AUMF and Article II—and now Gonzales has revealed that even they didn’t really believe it.

If they were negotiating with FISA to place the program under their jurisdiction, then they must have agreed with their critics that insisted FISA was a covering authority for such action. And if they’ve spent the better part of two years reaching an accommodation with FISA, why not just tell people what they were doing when the program got exposed?

Similarly, here’s Mark Levin:

For the Bush administration to argue for years that this program, as operated, was critical to our national security and fell within the president’s Constitutional authority, to then turnaround and surrender presidential authority this way is disgraceful. The administration is repudiating all the arguments it has made in testimony, legal briefs, and public statements. This goes to the heart of the White House’s credibility. How can it cast away such a fundamental position of principle and law like this?

Both of these reactions claim that the Bush administration never really believed its initial legal arguments over the President’s authority—a claim that I see no evidence for.  In fact, administration officials are explicitly saying otherwise, an assertion made directly in the Justice Department background briefing explaining (to the degree they can publicly), the administration’s new approach—apposite excerpts of which I’ll pull from the Q&A and post, along with some commentary, below the fold:

Even as a Washington Post/ABC News poll—in itself a bit deceiving (on which, more later)—reveals that 66% of Americans “said they would not be bothered if NSA collected records of personal calls they had made,”…

More attempts by our “adversarial” press (and their leak-happy counterparts in the CIA) to gin up controversy, this time, presumably, to try to scuttle the appointment of Gen Michael Hayden as DCI.

From USA Today:

The National Security Agency …

From AP/Breitbart, “Sen. Specter Threatens to Block NSA Funds”:

Senate Judiciary Committee Chairman Arlen Specter said Thursday he is considering legislation to cut off funding for the Bush administration’s secret domestic wiretapping program until he gets satisfactory answers about …

From Powerline, who posts more of the transcript, and AJ Strata, who concludes that

It was not actually the fact that NSA bypassed FISA—it was actually that Bush was opening the NSA leads to FBI investigation …

Both Powerline and AJ Strata are looking into an important NSA/FISA-related story that is (shockingly!) being interpreted differently by the NYT and the Washington Times. 

First, here’s John Hinderaker:

Yesterday, …

In a change of course, the Bush administration on Wednesday and Thursday offered new operational details to the House and Senate Intelligence Committees on the NSA foreign intelligence surveillance program, with press secretary Scott McClellan suggesting on Thursday that the …

As a follow-up to their Thursday editorial calling for the abolition of FISA (which I commented on at length, then later updated to counter a charge characterizing my position on the NSA controversy as “separtation of powers is stupid”—the precise opposite of what I’ve been arguing), today’s WSJ once again gets right to the crux of the issue.  From “President Kollar-Kotelly”:

From today’s WSJ (subscription only). “Abolish FISA”:

Whatever happened to “impeachment”? Only two months ago, that was the word on leading Democratic lips as they assailed President Bush for “illegal” warrantless NSA wiretaps against al Qaeda suspects. But at Monday’s Senate hearing on the issue, the idea never even made an appearance.

The reason isn’t because liberal critics have come to some epiphany about the necessity of executive discretion in wartime. The reason is they can read the opinion polls. And the polls show that a majority of Americans want their government to eavesdrop on al Qaeda suspects, even—or should we say, especially—if they’re talking to one of their dupes or sympathizers here in the U.S.

In short, the larger political battle over wiretaps is over, and the President has won the argument among the American people. We hope Dan Bartlett, Steve Hadley and other White House message-makers notice the difference between this outcome, on a matter on which they bothered to fight, and so many other controversies when they ceded the field to their opponents (“torture,” Joe Wilson).

All the more so because the policy debate over Presidential authority continues, and on a dangerous path. Judging by Monday’s hearing, Senators of both parties are still hoping to stage a Congressional raid on Presidential war powers. And they hope to do it not by accepting more responsibility themselves but by handing more power to unelected judges to do the job for them.

The preferred vehicle here is an expansion of the 1978 Foreign Intelligence Surveillance Act, or FISA, the Carter-era law that imposed judicial consent for domestic wiretaps during the Cold War. “If you believe you need new laws, then come and tell us,” Senate Democrat Pat Leahy told Attorney General Alberto Gonzales during Monday’s hearing. Chairman Arlen Specter and Members in both parties seemed to be saying, “We’re from Congress and we’re here to help you.”

But note well that the Members aren’t talking about sharing responsibility themselves for wiretap decisions. That they want no part of. The leadership and Intelligence Committee chairs were already briefed numerous times on the NSA program, only to have several of them deny all responsibility when the story was leaked. Intelligence Vice Chairman Senator Jay Rockefeller (D., W.Va.) even wrote his own not-my-fault letter that he kept secret until the story broke, when he released it in order to embarrass the Bush Administration. The real message of this episode is: “We’re from Congress and we’re here to second-guess you.”

What FISA boils down to is an attempt to further put the executive under the thumb of the judiciary, and in unconstitutional fashion. The way FISA works is that it gives a single judge the ability to overrule the considered judgment of the entire executive branch. In the case of the NSA wiretaps, the Justice Department, NSA and White House are all involved in establishing and reviewing these wiretaps. Yet if a warrant were required, one judge would have the discretion to deny any request.

[...]

FISA is the intelligence equivalent of asking battlefield commanders in Iraq to get a court order before taking Fallujah. “We can’t afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive al Qaeda operatives in real time,” as Mr. Gonzales put it.

We already know FISA impeded intelligence gathering before 9/11. It was the reason FBI agents decided not to tap the computer of alleged 20th hijacker Zacarias Moussaoui. And it contributed to the NSA’s decision not to listen to foreign calls to actual hijacker Khalid al-Midhar, despite knowing that an al Qaeda associate by that name was in the country. The NSA feared being accused of “domestic spying.”

Passed in the wake of the infamous Church hearings on the CIA, FISA is an artifact of post-Vietnam and post-Watergate hostility to executive power. But even as Jimmy Carter signed it for political reasons, his own Attorney General declared that it didn’t supercede executive powers under Article II of the Constitution. Every President since has agreed with that view, and no court has contradicted it.

As federal judge and former Deputy Attorney General Laurence Silberman explained in his 1978 testimony on FISA, the President is accountable to the voters if he abuses surveillance power. Fear of exposure or political damage are powerful disincentives to going too far. But judges, who are not politically accountable, have no similar incentives to strike the right balance between intelligence needs and civilian privacy. This is one reason the Founders gave the judiciary no such plenary powers.

Far from being some rogue operation, the Bush Administration has taken enormous pains to make sure the NSA wiretaps are both legal and limited. The program is monitored by lawyers, reauthorized every 45 days by the President and has been discussed with both Congress and the FISA court itself. The Administration even decided against warrantless wiretaps on al Qaeda suspects communicating entirely within the U.S., though we’d argue that that too would be both constitutional and prudent.

Any attempt to expand FISA would be the largest assault on Presidential power since the 1970s. Congress has every right to scrutinize the NSA program and cut off funds if it wants to. But it shouldn’t take the politically easy route of passing the buck to the judiciary and further limiting the President’s ability to defend America. Far from expanding FISA, Congress could best serve the country by abolishing it.

[my emphases]

Regular readers of this site will, I hope, recognize in the Journal’s succinct piece many of the arguments I have been making here for several weeks—the two most important of which, from my perspective, are these: