Good for them!
Well, the president stepped forward to make his default argument: that everything he's done has been good and necessary. A full transcript of his comments is available here, and from it I cull the bulk of his wiretapping message:
In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.
This is a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies.
Yesterday, the existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have.
And the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies and endangers our country.
As the 9/11 Commission pointed out, it was clear that terrorists inside the United States were communicating with terrorists abroad before the Sept. 11 attacks. And the commission criticized our nation’s inability to uncover links between terrorists here at home and terrorists abroad.
Two of the terrorist hijackers who flew a jet in the Pentagon, Nawaf Alhazmi and Khalid al-Midhar, communicated while they were in the United States, to other members of Al Qaeda who were overseas. But we didn’t know they were here until it was too late.
The authorization I gave the National Security Agency after Sept. 11 helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities.
The activities I have authorized make it more likely that killers like these 9/11 hijackers will be identified and located in time.
And the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.
The activities I authorized are reviewed approximately every 45 days. Each review is based on a fresh intelligment assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland.
During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation’s top legal officials, including the attorney general and the counsel to the president.
I have reauthorized this program more than 30 times since the Sept. 11 attacks and I intend to do so for as long as our nation faces a continuing threat from Al Qaeda and related groups.
The N.S.A.’s activities under this authorization are thoroughly reviewed by the Justice Department and N.S.A.’s top legal officials, including N.S.A.’s general counsel and inspector general.
Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it. Intelligence officials involved in this activities also receive extensive training to ensure they perform their duties consistent with the letter and intent of the authorization.
This authorization is a vital tool in our war against the terrorists. It is critical to saving American lives. The American people expect me to do everything in my power under our laws and Constitution to protect them and their civil liberties. And that is exactly what I will continue to do so long as I’m the president of the United States.
At least he's direct, and I do believe he generally means what he's saying. Here. In this particular case.
But there are a lot of problems with it - starting, of course, with legality. The president's lawyers (perhaps most vocally, even after his tour on the public payroll, John Yoo) have long taken a very extreme position on the powers inherent in the executive branch, so it's no great surprise that they'd contend that . . . well, let's let the Times spell it out:
President Bush did not ask Congress to include provisions for the N.S.A. domestic surveillance program as part of the Patriot Act and has not sought any other laws to authorize the operation. Bush administration lawyers argued that such new laws were unnecessary, because they believed that the Congressional resolution on the campaign against terrorism provided ample authorization, officials said.
Now, Senator Russ Feingold has apparently (I'm afraid I can't find the link) released a press briefing with a few tidbits about existing law:
* FISA makes it a crime, punishable by up to five years in prison, to conduct electronic surveillance except as provided for by statute. The only defense is for law government agents engaged in official duties conducting "surveillance authorized by and conducted pursuant to a search warrant or court order." [50 U.S.C. § 1809]
* Congress has specifically stated, in statute, that the criminal wiretap statute and FISA "shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." [18 U.S.C. § 2518(f)]
The White House's premise, though, is that this is no longer in force because - pursuant to the powers the executive branch assumed in the commencement on the "war on terror" - the president has the power simply to deem these laws no longer in force. L'etat, c'est moi, and all that.
Unsurprisingly, there's at least one instance of a judge disagreeing - and, in fact, barring evidence obtained through these warrantless taps from her court. In most cases, though, the judiciary was apparently simply kept unaware - to the extent that members of the NSA were wrestling with the question of whether the fulfillment of their duties in the new regime required lying to the courts (I'm not sure if that necessarily rises to the bar of perjury, but it ain't good).
Seriously, it's pretty basic constitutional theory that the executive branch does not, in fact, have the power to summarily place itself above the reach of the other two - the ugly matter of President Clinton, Paula Jones, and the lawsuit that kept them together should still be lodged deeply enough in the nation's consciousness to emphasize that point. And, while telling select congressmen that the program is going on is all well and good, President Bush and his speechwriters are being wildly disingenuous in trying to pass that off as being equivalent to securing congressional approval - by which most people mean passage of actual law.
So, I think it's illegal. More importantly, a lot of senators think it's illegal. Hell, according to the Times, quite a few members of the NSA think it's illegal. In the one cited instance in which evidence gained by these methods was openly discussed in court, it was immediately excluded by the judge. Basically, its constitutional legitimacy - and therefore its utility in a lot of circumstances - seems just a little bit suspect. A lot. Why do it, then?
Well, the earliest argument was that it was necessary in order to promote immediate, massive responses to critical situations - getting a warrant would simply be impractical. Again, from the Times:
Some of those who object to the operation argue that is unnecessary. By getting warrants through the foreign intelligence court, the N.S.A. and F.B.I. could eavesdrop on people inside the United States who might be tied to terrorist groups without skirting longstanding rules, they say.
The standard of proof required to obtain a warrant from the Foreign Intelligence Surveillance Court is generally considered lower than that required for a criminal warrant - intelligence officials only have to show probable cause that someone may be "an agent of a foreign power," which includes international terrorist groups - and the secret court has turned down only a small number of requests over the years. In 2004, according to the Justice Department, 1,754 warrants were approved. And the Foreign Intelligence Surveillance Court can grant emergency approval for wiretaps within hours, officials say.
Administration officials counter that they sometimes need to move more urgently, the officials said. Those involved in the program also said that the N.S.A.'s eavesdroppers might need to start monitoring large batches of numbers all at once, and that it would be impractical to seek permission from the Foreign Intelligence Surveillance Court first, according to the officials.
But.
Well, first, Josh Marshall's done some digging, and he reports that, since the institution of the Foreign Intelligence Surveillance Court in 1978, the "small number of requests" turned down has been four.
Total.
In twenty-seven years.
So we can probably assume that the burden for establishing due cause for legal surveillance is - let's speak softly - pretty low.
More, the Foreign Intelligence Surveillance Act was designed precisely to allow for emergency response, even providing for the issue of, yes, retroactive warrants. As for the inconvenience involved in securing large numbers of warrants - might I suggest the government hire more lawyers? I think the American people would be willing to pay.
Anyway, it just seems that this is another deal where - as much as anything - the intent was just to expand the powers of the executive branch. All the goals the White House names in its public argument are simply too hazy to credit.
The president - perhaps in honest frustration - also goes the extra mile in this speech and claims that "the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies and endangers our country."
If I may: cry me a river, sir.
There was never any question in my mind that the phone lines of suspected terrorist associates were being tapped. I suspect there was no question in anyone's mind - it's just common sense stuff. The big revelation here isn't that it's going on; it's that it's being conducted by the NSA without any serious oversight, just because the president says it's okay.
Making that public only benefits our enemies insofar as it makes the current occupants of the White House look like a bunch of arrogant jackasses - and, Mr. President, I might suggest that the proper response to that isn't to whine about having the curtain drawn back so all of Oz can see what you really look like, but to try harder to govern in a way that's consistent with the country's better legal and political traditions.
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