What If They Held A Hearing…
…and the only attendees were pieces of paper? That’s the thought that goes through my head reading this TIME preview of the planned testimony of Alberto Gonzales, as the NSA program hearing begins Monday. It’s really quite surreal the way we do things these days; not only do we already know what questions will be asked, but we know the answers, it appears. Of most interest to readers of this blog will be yet another assertion that the President’s program is limited, and does not involve data-mining or mass intercepts:
Specter has said that warrantless surveillance of U.S. citizens is “wrong,” but Senate aides say he has concluded Bush acted in good faith. Specter’s hearing, which is scheduled to last most of Monday, will focus on presidential powers in wartime and will examine whether Bush took legal shortcuts in implementing the program, which allows the National Security Agency to monitor communications involving suspected al-Qaeda members if one party to the conversation is inside the U.S. The program began soon after the Sept. 11 attacks and was exposed by the New York Times in December. Since then, lawmakers have complained that the administration’s legal arguments are shaky, and have contended that briefings for the House and Senate intelligence committees were inadequate or misleading.
The Attorney General plans to tell Specter that the program is more limited than has been portrayed in some news reports, which have suggested that it could impinge on the privacy of innocent Americans through vast data mining of conversations and e-mails carried by telecommunication companies’ trunk lines. “Contrary to the speculation reflected in some media reporting,” Gonzales writes, “the terrorist surveillance program is not a dragnet that sucks in all conversations and uses computer searches to pick out calls of interest. No communications are intercepted unless first it is determined that one end of the call is outside of the country and professional intelligence experts have probable cause (that is, ‘reasonable grounds to believe’) that a party to the communication is a member or agent of al-Qaeda or an affiliated terrorist organization.”
Note that (deliberate? Probably so…) intermingling of ‘probable cause’ and ‘reasonable grounds to believe’ – Glenn Greenwald, are you listening?
It’s worth pointing out again that even most critics of the administration’s approach don’t question the value of the program – for example, we have the return of Jane Harman:
Rep. Jane Harman (Calif.), the top Democrat on the House Intelligence Committee, said in a letter to President Bush on Wednesday that the “activities of the NSA program can — and should — be accomplished within the law, not by circumventing it.” Harman, one of the few lawmakers who has been briefed on the program, wrote that she is “not clear why FISA as presently drafted cannot cover the entire program.”
Why not FISA? Once more with feeling:
Gonzales contends in his 10-page opening statement for Monday’s hearing that fighting al-Qaeda “is, in fundamental respects, a war of information,” and that asking the FISA court for permission for each intercept “would necessarily introduce a significant factor of delay, and there would be critical holes in our early warning system.” Lawmakers in both parties have asked why the Administration could not use a FISA provision allowing petitions to the court after monitoring has begun. Gonzales says there “is a serious misconception” about those provisions, and that the administration could not begin surveillance “without knowing that we meet FISA’s normal requirements.” He said a FISA application “involves a substantial process” that “consumes valuable resources and results in significant delay,” when what is needed is “the maximum in speed and agility.”
It goes without saying that we haven’t seen the last of this story…
UPDATE 10:35 a.m.:AJ runs down the latest here, and he makes an excellent point – it’s unavoidable, when monitoring the phone calls of overseas terrorist suspects, that some calls to the U.S. will be picked up…the question is what you do with that information once you have it…
The argument given, that the 72 hour provision is burdensome because the AG decided they must document that they can meet the FISA requirements anyway, seems reasonable to me. But, as an answer to the charge that the program violates FISA, this defense is of the “yeah, but” variety and an admission that the law is being violated.
I’m surprised that the defense of the program isn’t argued more directly and strongly as a case of Executive Power/Separation of Powers situation. That argument goes: this engagement with the terrorists is a war, not a law enforcement action, and so FISA does not apply. Furthermore, allowing FISA to control the NSA program would set a bad precedent against the Presidential power to conduct war and war time surveilance.
I’m not making that argument, just surprised that the AG isn’t because the “it takes too long” argument, to me at least, is a total loser.
I think, toomanysteves, that AG is basing the Administration’s legal position much more on the separation of powers argument than is being pushed in the media, for exactly the reason you give: to say, “We didn’t use FISA because it would’ve been too haaaard” is a flat-out loser. (Conversely, I think the media is pushing the weaker argument because it’s weak.) It’s important that we know that FISA isn’t cut out for this kind of work, and IF – huge IF – the program is eventually found to be in violation of the law and/or Constitution, I’d expect that the Administration will then say, “All right, but what do you propose we do now?” (something, incidentally, that those who say they oppose the method though not the program should’ve been addressing all along, if they wanted to have any credibility in the area of national security, IMHO) and either FISA will be amended or there’ll be a new law enacted to cover this sort of thing.
I myself am firmly behind the separation-of-powers argument. In fact, I’m so firmly behind it that I think AG’s follow-up of “and if that’s not enough, we have the AUMF giving the President full authority to prosecute this conflict, which naturally includes interception of enemy communications” actually weakens the strongest case. But in any event, I’m satisfied with the three-pronged argument he makes – 1. Separation of powers, 2. AUMF, 3. warrantless surveillance of the international side of the call is A-OK no matter who you listen to, and we’ve gotten FISA warrants for every applicable case we’ve followed up on.