NSA program (de)liberation?
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 White House would listen to ideas that lawmakers have about legislation, but that the President would resist any move that threatened to compromise the program.
According to CBS News:
The decision to give Congress more information came as Senate Judiciary Committee Chairman Arlen Specter, R-Pa., announced he was drafting legislation that would require the secretive Foreign Intelligence Surveillance Court to review the constitutionality of the administration’s monitoring of terror-related international communications when one party to the call is in the United States.
It also came as Rep. Heather Wilson, R-N.M., chairwoman of a House intelligence subcommittee that oversees the NSA, broke with the Bush administration and called for a full review of the NSA’s program, along with legislative action to update the 1978 Foreign Intelligence Surveillance Act.
CBS, not surprisingly, points to the concerns of Republican lawmakers, which they do to suggest that opposition to the program is not coming only from Democrats—(Brad Blog has video of another, Senator Lindsey Graham of SC, who is commenting prior to the Senate briefing)—a truism that misses the point that the “concern” we’re seeing is coming from the legislative branch itself, whose membership, regardless of party, is largely interested in its own power. And in the case of the highly classified NSA surveillance program, a host of legislators initially kept out of the intel loop are finally getting their opportunities to argue for the legitimacy of their own power to constrain the executive.
For all the posturing of lawmakers over legality, however, this story continues to be one of a struggle for power between the various branches of government, with the White House still maintaining its inherent authority (while maintaining, similarly, that is has met the conditions of FISA, though legal analysts are split on the DoJ’s interpretation of the statutes), and Congress calling for an “expansion” and revisiting of FISA to accomodate aspects of the program.
In fact, Specter’s call for “legislation that would require the secretive Foreign Intelligence Surveillance Court to review the constitutionality of the administration’s monitoring of terror-related international communications when one party to the call is in the United States” is yet more legislative branch posturing (or, if you prefer, bullying), when read in light of Thursday’s WaPo story, which I’ve referenced previously on this point. Consider:
[…] judges [Kollar-Kotelly and Lamberth] expressed concern¹ to senior officials that the presidentÃ¢â‚¬â„¢s program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions. Yet the judges believed they did not have the authority to rule on the presidentÃ¢â‚¬â„¢s power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process.
This admission that the FISA judges have no jurisdiction² over what is an Article II question is consistent with the earlier FISA Review Court finding, which, while considering whether The Patriot Act modified US v TruongÃ¢â‚¬â„¢s Ã¢â‚¬Å“primary purposeÃ¢â‚¬Â test by allowing that surveillance under FISA was proper if intel gathering was one Ã¢â‚¬Å“significantÃ¢â‚¬Â purpose of the intercept, noted: noting:
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. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the PresidentÃ¢â‚¬â„¢s constitutional power.
Critics of the program continue to pretend that they are worried that the plenary power of the President is a potential (new?) danger requiring new “checks”. But legislators have at their disposal checks already granted them under the constitution—articles of impeachment (which speaks to their concern with illegality) or budgetary cutoff to the program—neither of which have they availed themselves of, knowing, as they must, that both tactics are political poison. And so they are left with trying to convince the American people that the President is overstepping his authority, and that they—riding the white horse of more expansive law—simply must be allowed to lasso him in by creating for itself an additional “check”—Congressional approval over individual instances of Article II powers beyond the general approval that comes with AUMF.
As I’ve argued before, though, the White House—while content to listen to lawmakers—is unlikely to blink on any condition of an expanded FISA statute that requires the executive to receive de facto permission from the legislature to use any individual component of the military power the CiC was granted under the AUMF. If anything, I suspect it will be Congress, ultimately, who finesses FISA in such a way that it adheres to the President’s use of intel gathering. That is, any new look to FISA will simply put it in line with the President’s current usage, with Congress then claiming for itself victory. The upshot, though, will be that FISA will simply “make legal” what the President, through the DoJ and the NSA counsel, has and will continue to maintain is already legal under his Article II inherent authority. That way, legislators can go back to pretending that FISA has some sort of controlling statutory authority, even though (as the judges and courts referenced earlier acknowledged) it would be Constitutionally impossible to rule against the executive authority on foreign intel gathering.
Fortunately, some newly-briefed lawmakers, though many continue to make noise about the necessity for FISA to match the surveillance programs particulars (if for no other reason than to give it the patina of “legality” their refusal to respect the Executive’s Article II powers prevent them from granting it currently), are beginning to acknowledge, in strong terms, their support for the program—and are noting that the way the story has been presented by many media outlets (as a “domestic spying program”) is simply wrong and misleading. Still other lawmakers (Jane Harman, one of the original 8 briefed) are taking it one step further—arguing that the program, as they have been briefed on it, adheres to current FISA law.
In an interview conducted in her office, Democratic Congresswoman Jane Harman, the ranking Democrat on the House Permanent Select Committee on Intelligence, told FNCÃ¢â‚¬â„¢s Jim Angle that the Ã¢â‚¬Å“very valuableÃ¢â‚¬Â terrorist surveillance program Ã¢â‚¬Å“fits withinÃ¢â‚¬Â the FISA law. In the session excerpted on FridayÃ¢â‚¬â„¢s Special Report with Brit Hume, she deplored how leaks are hurting intelligence efforts and scolded the news media for Ã¢â‚¬Å“not extremely accurateÃ¢â‚¬Â characterizations of the program. Zeroing in on the New York Times, which first revealed the program, Harman asserted their story was Ã¢â‚¬Å“inaccurateÃ¢â‚¬Â because they reported it included a Ã¢â‚¬Å“domestic-to-domesticÃ¢â‚¬Â surveillance effort. She also charged that Ã¢â‚¬Å“these leaks are compromising some core capability of the United States,Ã¢â‚¬Â regretting how Ã¢â‚¬Å“it’s tragic that this whole thing is being aired in the newspapers.Ã¢â‚¬Â As to who is the blame, however, she bore in on the Bush administration for how Ã¢â‚¬Å“this can’t be handled in normal channels because this administration refuses to share the information with Congress.” (Transcript follows.)
The relevant portion of the excerpt of the interview with Harman, who represents the coastal West side of the City of Los Angeles south from Marina del Ray to San Pedro, through the independent cities in between of El Segundo and Manhattan Beach, as aired on the February 10 Special Report with Brit Hume:
Asked by Angle whether the law or the program needs to be changed, Harman replied: Ã¢â‚¬Å“We need to assess whether or not this program fits within FISA. I say it does. I have seen no reason why it doesn’t. If it fits within FISA, the administration, in my view, has to follow the law. If it doesn’t fit within FISA for some reason that I have not yet understood, then we need to consider whether we change the program or change the law. But bottom line here is this very valuable program—and I insist, you know, I won’t back off that for a minute, at least the one on which I was briefed, there may be something else out there—but the valuable program on which I was briefed must comply with the law and can.Ã¢â‚¬Â
Jim Angles: Ã¢â‚¬Å“To clarify here, you’re saying that what you know about the program actually is legal under existing law?Ã¢â‚¬Â
Harman: Ã¢â‚¬Å“Would be legal under existing law. The administration has admitted itÃ¢â‚¬â„¢s not getting FISA warrants on U.S. persons who are part of the chain of-Ã¢â‚¬Â
Angle: Ã¢â‚¬Å“Who might be called by foreign terrorists.Ã¢â‚¬Â
Harman: Ã¢â‚¬Å“Right. Of people involved in what they think is plots spearheaded by al-Qaeda to attack Americans. And let me be clear about this: If U.S. persons are part of those plots, I surely want to know what theyÃ¢â‚¬â„¢re up to. I absolutely believe, however, there would be probable cause, through the FISA court and through the, you know, under FISA, to get court warrants. And the law applies and the law should be complied with and I have not heard any compelling arguments why we shouldnÃ¢â‚¬â„¢t use the law. Ã¢â‚¬Â
Angle: Ã¢â‚¬Å“The media reporting on this has talked about the program, there have been a lot of public discussion, more perhaps than about any other highly classified program in my memory.Ã¢â‚¬Â
Angle: Ã¢â‚¬Å“How accurate is the public understanding? You actually know what the program is. How accurate is the public understanding?Ã¢â‚¬Â
Harman: Ã¢â‚¬Å“Not extremely accurate. The most early—you know now it can be said, now that Attorney General Gonzalez has said this is not a domestic-to-domestic program. The early reports by the New York Times, to which this program, the facts of this program or the existence was leaked, were inaccurate because that’s what they claimed it was. And, that is, according to our Attorney General, not what it was. So thereÃ¢â‚¬â„¢s one.Ã¢â‚¬Â
Angle: Ã¢â‚¬Å“And you’re comfortable with that?Ã¢â‚¬Â
Harman: Ã¢â‚¬Å“I’m comfortable with that. As I’ve said, I support the foreign collection program on which I have been briefed and I don’t want to amplify that comment, but I think you get the point of my comment. So I’m comfortable with that. But there are ongoing leaks and I felt then and I feel now that these leaks are compromising some core capability of the United States. It’s tragic that this whole thing is being aired in the newspapers. Why is it happening? I think it relates in part to this notion that we cannot do congressional oversight. This can’t be handled in normal channels because this administration refuses to share the information with Congress.Ã¢â‚¬Â
What is important to take away from Harman’s interview, the whole FISA vs. Article II powers question aside—which is a separation of powers issue that is unlikely to be settled “legally,” as I’ve consistently maintained—is that the program, according to Harman, seems to be both worthwhile and effective, and that the leaking of information about the program is damaging to national security, despite the continued reluctance of some civil libertarian absolutists and progressive pundits to admit as much.
Instead, they wish to maintain that the leaker—and the NYT—were whistleblowers. But such a position relies on maintaining several fictions, first, that warrantless wiretapping was happening wholly domestically (untrue, according to the NSA, the DoJ, the administration, and now Rep. Harman, among others), second, that FISA holds statutory authority over the President’s use of NSA surveillance, and third, that Congress is in charge of giving the President particular, enumerated permissions to use military measures inside the US.
¹ Law professors Erwin Chemerinsky, John Eastman, and Jonathan Adler, appearing on Hugh Hewitt’s radio show, argue that Judges Kollar-Kotelly and Lamberth exceeded their authority in acting as they did (h/t Karl); as Karl notes in his comment, “What would have been interesting to know, but the WaPo does not report, is whether the judges expressed their concerns before or after the FIS Court of Review rejected the FISA court’s restrictive approace to intell collection in In re Sealed Case.
² In the comments, actus writes, “Of course the judiciary has jurisdiction to decide whether something is a proper exercise of Article II. I think what the FISA judge is saying is that this is not the role of a FISA court. Its something for a regular court to do. But if judges have no jurisdiction, there goes all that we can rely on any FISA review court dicta.” My background not being in legal speak, it is possible I used “jurisdiction” inelegantly here. But my point remains the same: both the FISA court judges cited in the WaPo and the language of the FISA Review Court make it clear that it is not the place of FISA judges to rule on inherent authority under Article II; beyond that, though, actus is correct, as I noted in a previous comment: even were the FISA Review Court to find the President’s actions illegal, their finding would have no real force until it was determined that FISA itself was constitutional. Which would require a SCOTUS ruling. I could be wrong about this, but forgive me—I’m learning as I go.