I argue below that President Bush and his aides are twisting facts as well as law in their obsession with avoiding independent oversight of his warrantless electronic surveillance program. But I begin with three concessions.
First, the Foreign Intelligence Surveillance Act of 1978 is outdated. It bars and impedes some forms of electronic spying that may well be essential in an era of suicidal terrorists who seek doomsday weapons and are bent on mass murder.
Second, the president’s inherent constitutional power to protect the nation justified his authorization in the weeks after 9/11 (but not indefinitely) of a National Security Agency surveillance program that would otherwise have been a criminal violation of FISA.
Third, the administration may well be right in saying that leaks and media disclosures of classified information have done serious damage to national security in a few cases and possibly some damage in the case of Bush’s NSA program.
But is Bush credible when he claims that the leaking to and the disclosure by The New York Times on December 16 of aspects of the previously secret NSA program "puts our citizens at risk"? And was Attorney General Alberto Gonzales credible when he testified on February 6 that to submit to congressional regulation and judicial oversight would mean "effectively killing the program" by blowing secrets essential to its effectiveness — and that this view was the "consensus" of congressional leaders whom the administration had briefed?
I don’t believe them, except perhaps as to the inertness of some congressional leaders. And the Bush and Gonzales track records inspire no trust in their veracity. Especially when Bush suggests that the NSA program eavesdrops only on international communications involving "known Al Qaeda and/or affiliates" (emphasis added).
To the contrary, news reports plausibly suggest, the program intercepts thousands of communications, the vast majority of which involve no Qaeda affiliate on either end. Sophisticated NSA computers flag these communications as possibly suspicious based on preliminary screening of millions of communications. But on closer inspection by NSA personnel, most of the computer-flagged communications turn out to be entirely innocent. A few turn out to involve Al Qaeda.
This does not mean that the program is ineffective, unconstitutional, or even flawed. It does suggest that we cannot trust the executive branch to tell us the truth about the program, even when the only cost of doing so would be political, not operational.
The most obvious flaw in the Bush-Gonzales fixation on secrecy is that our enemies — who were already using code words to thwart surveillance before 9/11 — know perfectly well that we are spying on them every which way we can, in this country as well as abroad. They must assume that no matter where they are, the NSA may be listening to their phone calls, reading their e-mails, and fishing for suspicious patterns (frequent calls to or from the Pakistan-Afghanistan border, for example) and code words.
So how was The New York Times "helping the enemy" (in Bush’s words) when it disclosed on December 16 that soon after 9/11 Bush had authorized the NSA to intercept, without judicial warrants, communications to and from America involving suspected Qaeda members?
The terrorists already knew — from sources including FISA itself — that their calls and e-mails could be intercepted with warrants. So now they know that they can be intercepted without warrants as well. This increases the risk of interception by some unknowable degree. But the risk was already great enough to warrant countermeasures.
The administration’s claims that even closed congressional hearings would kill the NSA program by exposing essential secrets also seem wildly overblown.
Sure, it’s likely that any NSA information that is shared with more than a handful of members of Congress would leak. But the administration need not give critical secrets and sensitive technological information to Congress, possibly excepting the "Gang of Eight" Republican and Democratic leaders whom officials have already briefed in some detail.
If, say, the NSA has broken a code used by Al Qaeda for an extended time to disguise its communications — as we cracked German and Japanese codes during World War II — Congress should not and need not be told.
But try to imagine a hypothetical scenario in which the NSA has some new technology or technique that is 1) so relevant to any congressional regulation as to require disclosure to the Intelligence committees and 2) so operationally sensitive that leaks would make it a lot easier for terrorists to hide. I can’t come up with one. Can you?
It is, of course, impossible to be confident that our enemies have learned nothing of value from the news leaks about the NSA program or that they would learn nothing from any congressional effort to regulate it.
But that possibility does not differentiate the NSA program from many others about which vast amounts of information of some possible use to our enemies have been routinely made public for many decades.
Our country has long accepted some measure of damage to secrecy — and thus to security — as a price well worth paying for a free society founded on constitutional checks and balances.
Indeed, the same don’t-tip-off-the-enemy logic that the administration uses to oppose congressional regulation could be turned against the administration itself. For example, Bush and others stress that he has not authorized warrantless interception of Qaeda communications when both parties are in the U.S. This sends a most useful message to Al Qaeda: Its agents in the U.S. can safely phone or e-mail other people in the U.S. as long as they have been careful enough in their other activities to avoid creating "probable cause" for the government to suspect them.
So would-be suicide bombers living in, say, Montreal now know, courtesy of President Bush, how to reduce the risk of electronic surveillance: Move to the United States.
Bush’s reason for broadcasting this information to us (and the enemy) is to tamp down the political backlash over the NSA program. That speaks volumes about the sincerity of his concern that news leaks put "our citizens at risk."
The administration’s logic also suggests that it was wrong to ask Congress to pass the USA PATRIOT Act in 2001. Why tip off terrorists by telling Congress anything, ever, about intelligence activities? Or by spelling out in published legislation what our spies can and cannot do? Why not just claim inherent executive power to do in secret everything that Congress has authorized?
As Sen. Lindsey Graham, R-S.C., told Gonzales at the February 6 hearing, Bush’s dangerously sweeping claim of "inherent authority" to defend the country has "no boundaries." It could "almost wipe out anything Congress wanted to do," including its laws against torturing prisoners.
If Bush has his way, we would know only as much about whether and how much he is using warrantless wiretaps, secret detentions, torture, and perhaps assassinations as he chooses to tell us. Can we trust him to tell us as much as he should?
This is the same Bush who said on April 20, 2004: "Anytime you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so."
Although the context was a discussion of congressionally authorized wiretaps, Bush’s statement was flat-out false. And his sweeping, unqualified choice of words exudes intent to mislead.
As for Gonzales, consider his response during his January 6, 2005, confirmation hearing to this question from Sen. Russell Feingold, D-Wis.: "Does the president, in your opinion, have the authority, acting as commander-in-chief, to authorize warrantless searches of Americans’ homes and wiretaps of their conversations in violation of the criminal and foreign-intelligence surveillance statutes of this country?"
Gonzales dismissed this as a "hypothetical situation." But there was nothing hypothetical about it, we now know. The Gonzales Justice Department’s answer to Feingold’s question is yes — although Gonzales pretended otherwise in his February 6 testimony. See pages 3 and 35 of the Justice Department’s 42-page, January 19 defense of the NSA program’s legality.
In his February 6 testimony, Gonzales sought to parry Feingold’s charge that his earlier testimony had been misleading by taking refuge in the truism that if the president has the constitutional power to authorize something, then it is not a criminal violation.
That may be a defense to a perjury charge — but not to the charge that this man cannot be trusted to tell the truth.