From David Corn's blog: And bravo to Alberto Gonzales. At yesterday's Senate judiciary committee hearing, he did the most subtle impersonation of the Red Queen I've ever seen. The Alice in Wonderland matriarch once said, "Sometimes I've believed as many as six impossible things before breakfast." For hours after his breakfast, Gonzales kept telling the committee that Bush, in authorizing warrantless wiretaps of American citizens and residents, did not break the FISA law because Bush is, according to the implied meaning of other law, above this law, while he kept refusing to acknowledge that such a reading of the law would place Bush above all laws. Or perhaps Gonzales had once studied law under Humpty Dumpty, who proclaimed, "When I use a word, it means just what I choose it to mean--neither more nor less." Even several GOP senators were frustrated by the A.G.'s channeling of Lewis Carroll. In any event, the hours of explanation Gonzales provided the commitee warrant further explanation.
Feb. 8, 2006, 12:56AM Intelligence panel chair calls for eavesdropping inquiry GOP's Wilson says investigation by whole Congress is necessary By ERIC LICHTBLAU New York Times WASHINGTON - A House Republican whose subcommittee oversees the National Security Agency broke ranks with the White House on Tuesday and called for a full congressional inquiry into the Bush administration's domestic eavesdropping program. Rep. Heather Wilson of New Mexico, chairwoman of the House Intelligence Subcommittee on Technical and Tactical Intelligence, said she had "serious concerns" about the surveillance program. By withholding information about its operations from many lawmakers, she said, the administration has deepened her apprehension about whom the agency is monitoring and why. Wilson, who was a National Security Council aide in the administration of the elder George Bush, is the first Republican on either the House's Intelligence Committee or the Senate's to call for a full congressional investigation into the program, in which the NSA has been eavesdropping without warrants on the international communications of people inside the United States thought to have links with terrorists. Wilson's discomfort with the operation appears to reflect deepening fissures among Republicans over the program's legal basis. Many Republicans have strongly backed President Bush's power to fight terrorism, but four of the 10 Republicans on the Senate Judiciary Committee voiced concerns about the program at a hearing at which Attorney General Alberto Gonzales testified Monday. Several Republicans have called for Congress to consider amending federal wiretap law to address the constitutional issues raised by the NSA operation. The administration said that it considers further legislation unnecessary, believing that the president has the legal authority to authorize the opera- tion. Vice President Dick Cheney reasserted that position Tuesday on The NewsHour With Jim Lehrer. "We have all the legal authority we need," Cheney said.
Security choices Feb 8, 2006 by Linda Chavez Which of these two alternatives will make America safer? The United States government will intercept communications from al Qaeda operatives overseas and their agents or enablers in the United States in the fastest, most efficient way possible, even if it means not obtaining a warrant beforehand. Or, if the government wants to intercept phone calls or e-mails between al Qaeda operatives overseas and their agents or enablers on American soil, government lawyers will have to spend hours, days, perhaps even weeks compiling legal arguments and factual evidence of the kind and quality that would hold up in court should any of the parties ever later be charged with a crime in U.S. courts. When all is said and done in the debate over the National Security Agency's (NSA) surveillance program, these are the choices, which became clear if you were listening carefully to the hearings before the Senate Judiciary Committee this week. The first option describes what the president has directed the NSA to do. The second option is what the Foreign Intelligence Surveillance Act requires (although the administration claims FISA is not the last word on the president's authority). Democrats ought to be concerned by polls that show most Americans want the government to intercept al Qaeda communications, even -- perhaps especially -- those involving persons living here, as were all of the 9/11 attackers before they flew airplanes into our buildings. Maybe this explains why some Democrats are talking about amending FISA to allow the NSA program rather than impeaching the president -- which would certainly be a legitimate course of action if they truly believed he was recklessly and purposely disobeying the law. Sen. Leahy argued at the hearings that "We all agree that if you have al Qaeda terrorists calling, we should be wiretapping them." Of course he went on to say that "instead of doing what the president has the authority to do legally, he decided to do it illegally without safeguards." Yet the senator doesn't seem interested in drawing up articles of impeachment, but instead almost pleaded with the administration to propose new legislation to fix what he considers the problem. Unless you are a confirmed Bush hater -- and they seem to be legion these days, thanks in large part to the irresponsible rhetoric of Congressional Democrats -- it is simply irrational to believe that the president's purpose is to flout the law through this program, much less spy on ordinary Americans. We are at war, something Osama bin Laden and Ayman al Zawahiri understand, even if Ted Kennedy and Pat Leahy appear not always fully to comprehend the fact. Congress has authorized the president, in his constitutional role as commander in chief, to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" of Sept. 11, 2001, in order to prevent "any future acts of international terrorism against the United States." As Attorney General Alberto Gonzales testified this week, it flies in the face of reason to assume this means the president can order bullets and missiles fired at al Qaeda but cannot direct the NSA to listen in on al Qaeda phone calls or intercept their e-mails. Opponents of the NSA program dressed up their criticisms in constitutional and legal jargon, but the battle is really over turf. All the Democrats on the committee and at least two of the Republicans (Chairman Arlen Specter and Sen. Lindsay Graham) seem as concerned about protecting Congressional prerogatives as they do the American people. They want the president to come to Capitol Hill, hat in hand, to seek permission to do what the administration argues the Constitution already permits. So far, the administration is standing firm, which is the proper course. If Congress insists on encroaching on the president's authority, it should be tested in the courts -- which have pretty consistently sided with the administration in previous challenges to his authority on similar matters.
The opposite of intelligence Feb 7, 2006 by Debra Saunders If anyone can show me that the National Security Agency, under order from President Bush or top aides, eavesdropped on Hillary Clinton or Ted Kennedy or some prominent partisan critic, I'll change my tune and see what this administration is doing as a threat to civil liberties. Until then, I can only see the attacks on an NSA surveillance program -- on Monday the Senate Judiciary Committee grilled Attorney General Alberto Gonzales over the program that allowed officials to data-mine information from international phone calls and the Internet -- as ill-conceived, partisan and dangerous. Ill-conceived? The Sept. 11 commission's purpose was to figure out why authorities did not connect the dots and prevent those deadly terrorist attacks. Now, Washington is scolding the NSA for using state-of-the-art technology to try to connect more dots. Partisan? Yes, there are Republicans who have questioned the NSA program. Still, most Democrats won't give the Bushies the same break they'd hand to a Democratic administration in a heartbeat. After all, the Clinton administration conducted warrantless searches in an American's home. His name was Aldrich Ames, and he later pleaded guilty to spying for the former Soviet Union while working for the CIA. As The Washington Post reported in 1994, "government officials decided in the Ames case that no warrant was required because the searches were conducted for 'foreign intelligence purposes.'" There was no huge outcry that Clintonia should have obtained a warrant. Former Clinton Justice official Jamie Gorelick contended in a letter to the Judiciary Committee that the president had "the inherent authority to authorize foreign intelligence physical searches" -- but that, after Ames, the administration later sought to change the FISA law to include physical searches because "it would be better" to have congressional and judicial oversight of those searches. It would be better? That's it? Gorelick won't say that the Bush NSA program is illegal, as some senators charge, but only that her testimony for the FISA change in 1994 "does not address that question." That should tell you that the legality of the NSA program is, at worst, debatable. Dangerous? Actually, it's only dangerous if Washington manages to bury vital intelligence information that allows a terrorist attack which might have been thwarted to occur. Critics ask: Why didn't the NSA simply seek warrants retroactively? They're as easy to get as candy. Why, the FISA courts only rejected four out of tens of thousands. The answer is clear. As The Washington Post reported Sunday, much of the NSA data-mining produced leads that led nowhere. They didn't provide probable cause for a warrant. Even in cases where a FISA warrant would seem to be a sure thing -- as when FBI agents wanted to get into (now admitted al-Qaida terrorist) Zacarias Moussaoui's laptop -- it was not. This is straight from the Sept. 11 panel report: Even though an FBI agent had figured out that admitted terrorist Moussaoui was "an Islamic extremist preparing for some future act in furtherance of radical fundamentalist goals,'' even though Moussaoui drew suspicion taking lessons for flying the Boeing 747 without the requisite background, even though Moussaoui had $32,000 in the bank but no plausible explanation why, "the case agent did not have sufficient information to connect Moussaoui to a 'foreign power'" -- which was a "statutory requirement for a FISA warrant." Is the Bush administration doing everything right? Hell, no. The Bushies' argument that Congress essentially authorized these wiretaps when it authorized the use of military force after the Sept. 11 attacks is disingenuous and infuriating. Lucky for Dubya, the Senate Judiciary Committee is filled with the most bombastic windbags in America -- they are more irritating saying absolutely nothing than Gonzales is saying next to nothing. Sen. Arlen Specter, R-Pa., the committee chair, has pushed for the administration to ask the FISA court to review the NSA program. "You think you're right, but there are a lot of people who think you're wrong," Specter told Gonzales. "What do you have to lose if you're right?" The question should be: What does America have to lose? If FISA found against the NSA program, one would hope Congress would pass laws designed to give intelligence officials what they need -- as long as there's oversight to prevent abuses. But that may be asking too much. The best way to define the most irritating senators on the Judiciary Committee: They voted for the Patriot Act before they voted against it.
Amnesiac America Feb 7, 2006 by Paul Greenberg It was ages ago - namely, September of 2001 - when the president of the United States went before Congress and a nation still in shock to ask for the full panoply of wartime powers. Remember? "We will direct every resource at our command," the president vowed, "every means of diplomacy, every tool of intelligence, every instrument of law enforcement, every financial influence, and every weapon of war - to the destruction and to the defeat of the global terror network." Every tool of intelligence. That phrase tends to be forgotten in the current hubbub over whether the president has violated the privacy of suspected terrorists who may be making calls to and from this country. That seems to be the burden of the latest accusation against this president. But back then, it was clear the president - and the country - intended to take the terrorist threat seriously. And so did Congress - back then. It may have been September of 2001, but it felt like December of 1941. Congress moved swiftly to approve the Authorization for Use of Military Force, the functional equivalent of a declaration of war. Not that the president and commander-in-chief needed congressional permission to defend the country, thanks to the foresight of those who wrote the Constitution. But in a joint resolution passed three days after the September 11th attacks, Congress made the point explicitly, recognizing that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." Remember all that? Well, forget it. Because we've avoided another disastrous attack on American soil for so long - more than four whole years - that now we can relax and turn on each other instead of the enemy. Today the president's more vociferous critics claim that his power to defend the country ends at the water's edge, at least if the issue is whether the government can monitor international calls to and from these shores without a warrant. Welcome to this new era - and this new concept of war in which enemy prisoners, even illegal combatants captured in the field, are entitled to habeas corpus. In this new kind of war, the country's defenders need a warrant to spy on terrorists plotting our destruction - if said terrorists will just take the precaution of doing so in a call to this country. We're told that FISA, the Foreign Intelligence Surveillance Act, doesn't allow warrantless wiretaps on such calls. "It's that simple," we're assured by The New York Times. Really? But that act, passed in 1978, was meant to apply to domestic calls, not international ones. Nor was it meant to strip a president of his constitutional power, through the National Security Agency or any other arm of the executive branch, to defend the country against foreign threats. Jimmy Carter's attorney general, Griffin Bell, noted as much during his congressional testimony at the time. A succession of court decisions said much the same thing since, among them a ruling from the FISA system's own Court of Review in the course of siding with the government's position in a disputed case: "(A)ll 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 . . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power." Speed is of the essence in these cases, and applying for a search warrant requires a lot of complicated steps. But doesn't the FISA law specifically allow the government to seek a search warrant up to 72 hours after a phone line has been tapped? What's the problem? Why not jump through all the hoops and do all the paperwork post-facto? Because it ordinarily takes a lot more than 72 hours for government lawyers to go through all the steps involved in obtaining such a warrant. The process isn't designed for speed. Besides, there have been a lot of changes in telecommunications since 1978, when the FISA statute was enacted, as you may have noticed if you have a cell phone. Using spy satellites and high-speed electronic databanks and who knows what still-secret techniques - the whole program was secret before The New York Times blew its cover - the NSA can search through millions, even billions, of phone calls and Internet transmissions. And come up with suspicious phone numbers or other telltale bits of information that lead to a suspect. Should we demand that the feds obtain a warrant for every one of those databytes? Please. Why not amend the FISA statute to make it crystal-clear that the president has the authority to conduct such intelligence-gathering operations? Because it would immediately become a hot political issue. Indeed, it already is. And after all the secret briefings and accompanying leaks, the public hearings and bitter debates that it would take to change FISA, there would still be no assurance that the law would be improved rather than further confused. And in the process, other secrets would doubtless be revealed to the enemy. The only sure result would be to further erode the president's constitutional authority - and duty - to protect the country from another attack. Remember the notorious wall that prevented the FBI and CIA from exchanging information about foreign threats before 9/11? Will the current debate succeed only in erecting a new impediment that will make just as little sense? To quote Victoria Toensing, former chief counsel for the Senate Intelligence Committee: "It took 9/11 for the Congress to pass the amendment breaking down the 'wall,' which had been on the Justice Department's wish list for 16 years. And that was just the simple tweak of changing two words. The issues are vastly more complicated now, requiring an entirely new technical paradigm, which could itself become obsolete with the next communications innovation." Yes, technology does tend to develop so much faster than the laws regulating it. Not to mention the politicians trying to control it. Think of all the nerds it takes to run these sophisticated programs 24/7 at NSA while the rest of us sleep soundly through the night. I picture them as rank on rank of white-shirted, crew-cutted techs with one each pocket protector and utility CD. And every one of them deserves our heartfelt thanks. They ought to be saluted, not undermined. The president's critics wrap themselves in the Fourth Amendment's protection against unreasonable searches and seizures, but what could be more reasonable than such searches in such wartime circumstances? Our rights deserve more respect; they shouldn't be used as just political fodder. Instead, the president is pronounced guilty in the august chambers of The New York Times editorial offices, where the law is "that simple." Not to say simplistic. There is no evidence of the president's using this program to snoop on political enemies at home - as in the Filegate scandal during the last administration. This is strictly an intelligence program directed against a foreign enemy, and a rather sophisticated and carefully monitored program at that. We ought to be impressed. And assured. Beyond all the sound and fury surrounding this issue, one thing is clear: If the NSA, FBI and CIA don't manage to stop the next terrorist attack, and the enemy does get through again, this whole discussion is going to seem awfully abstract amidst all the death and destruction.