I Spy

Lots of buzz this week in the aftermath of the first round of the Senate Judiciary Committee hearings on the President's warrantless wiretapping program. The buzz on the right seems to be outrage and shock that hearings were even held at all. After all, if his majesty says he has the authority to do it, than why question that? The rest of us are taking a more nuanced approach to the issue. In the wake of what we learned on Monday, the two key questions are: Is this program, and the President's behavior, legal? The Committee members were less than convinced. Second, is the program even effective? Numerous reports have hinted that it might not be.

One interesting story that came out today was this- White House Gives Details on Surveillance

After some serious pressure from Republican Rep. Heather Wilson, the very influential chairwoman of a House Intelligence Committee subcommittee, the White House gave that committee a top-secret briefing on the program. Attorney General Alberto Gonzales and Gen. Michael Hayden conducted the briefings, the details of which are understandably classified. This major turnaround shows that the White House is a lot more concerned about the political fallout of their actions than their Rove-ian tough guy posturing indicates... They are definitely scared. And they should be. They broke the law, lied about it, and in doing so may have harmed national security. This scandal is far from over.

Let's address program under two issues stated before- legality and effectiveness.

Legality- Numerous reports have come out that rebut the Administration's legal argument for the program. Even Arlen 'No I won't swear in the witness' Specter called their argument "strained". At the conclusion of Monday's hearing, Specter told Gonzales that his argument "just defies logic and plain English". The administration's legal defense of the program, besides resting on the President's constitutionally vague 'Commander in Chief' title, is based on the 2001 Authorization For Use Of Military Force, (which authorized the Afghanistan war). When the White House unveiled this defense, most Senators were quite shocked to learn that the resolution could have given the President any new powers or authorized him to violate the Foreign Intelligence Surveillance Act (they had been previously been shocked to learn that Gonzales had declared the Geneva Conventions 'obsolete' and 'quaint'). This is because the resolution did no such thing. In fact, as reported by Tom Daschle and others, the President requested such blanket extra authority be added to the resolution and Congress refused. In addition, members of both parties stated at the time the resolution was being drafted that this was the case, including Rep. Christopher Smith (R-NJ) who stated "The resolution is not a blank check". Here are two of the more pertinent quotes-

"The tension that we face tonight is to provide the President with enough authority to eradicate wrongdoing without wronging the carefully crafted systems of checks and balances so essential to our democracy. … As we vote for this important resolution with the lives of so many at stake in this important endeavor against terrorism, we cannot let the executive branch become the exclusive branch."
-Rep. Lloyd Doggett (D-TX) [Congressional Record, 9/14/01]

"Some people say that is a broad change in authorization to the Commander in Chief of this country. It is not. It is a very limited concept of giving him the authority to pursue those who have brought this terrible destruction to our country and to pursue those who have harbored them or assisted them and conspired with them in any way."
-Sen. Ted Stevens (R-AK) [Congressional Record, 9/14/01]

After the State of the Union last week, a Boston Globe article came out, describing legal specialists questioning the assertions the President made in the speech. Here is the main gist of that-

But legal specialists said yesterday that wiretaps ordered by previous presidents were put in place before warrants were required for investigations involving national security. Since Congress passed the law requiring warrants in 1978, no president but Bush has defied it, specialists said.

Bush's contention that past presidents did the same thing as he has done ''is either intentionally misleading or downright false," said David Cole, a Georgetown University law professor. Only Bush has made the assertion that his wartime powers should supersede an act of Congress, Cole said.

And that is the key issue.

The FISA judges themselves have had numerous legal problems with the program. One even resigned in protest.

The administration's claims of a general consensus of the program's legality are an outright lie. In addition, many have contended (and I believe) that the administration simply thought up this faulty legal argument for the program just last December after the NY Times story leaked the program. The administration has not used the Afghanistan resolution to justify extra-legal actions before and it seems like a very recent decision to do so now.

Effectiveness- Numerous reports have also questioned how effective the program is to begin with. To date, the only success story the administration has openly linked to the program is a self-aborted plot to destroy the Brooklyn Bridge... with blowtorches. Needless to say, that plan never got off the ground to begin with. Last month, the NY Times reported that "the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists... [and] virtually all of them, current and former officials say, led to dead ends or innocent Americans." In addition, a Washington Post story just this week states that "Intelligence officers who eavesdropped on thousands of Americans in overseas calls under authority from President Bush have dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat".

Newsweek has a new article up exploring this issue- Wanted: Competent Big Brothers-
As the Senate frets over whether the NSA has violated the outdated Foreign Intelligence Surveillance Act, no one is paying attention to the real issue: proficiency.

The article notes-

As our esteemed senators fret over whether the NSA has violated their outdated 1978 law, the Foreign Intelligence Surveillance Act, they are not paying enough attention to the competence issue. And no one seems to recall that the same Senate intelligence committee report from 2002 also criticized the "NSA's cautious approach to any collection of intelligence relating to activities in the United States," and its "failure to address modern communications technology aggressively." In recent years the agency tried to do so, but failed. To little notice, a giant $1 billion-plus program called Trailblazer that was to have brought the NSA up to date in data mining and pattern analysis—transforming the NSA's blizzard of signals intelligence into an easily searchable database—has turned into such a boondoggle that, one intelligence official says, "nothing can be salvaged out of it." "It’s a complete and abject failure," says Robert D. Steele, a CIA veteran who is familiar with the program.

Read the full article for an elaboration on this issue.

The article concludes-

Only one person has the power to slice through the bureaucratic inertia and set real reform in motion: the president of the United States. But to do so, of course, could put the permanent war in jeopardy. And if you’re a "war president," as Bush describes himself, and you want to reassert presidential power, as he does, then permanent war can be a good thing. Perhaps that is why Karl Rove, with his war-works-for-the-GOP campaign strategy for 2006, looks so happy these days. Perhaps it is why the president—who once dismissed Osama bin Laden as unimportant as he diverted the nation’s attention and resources to Iraq—now says that Americans should take the mastermind of 9/11 "seriously." (Wasn’t it just Groundhog Day recently?) Perhaps it is why the Bush administration is now devoting so much to its military buildup while stripping critical education programs needed to make America more competitive, insisting on permanent tax cuts and ensuring monster deficits for decades.

Wait a minute. Drawing the lone superpower into an endless global struggle, draining it of its wealth and will … that was Osama bin Laden’s strategic goal, right? Didn’t we have some intelligence on that once?

Seems like ages ago to me.

So, in both legality and effectiveness, this program is almost the exact opposite of what the White House is claiming it is. The power to do something about this and rein in the President's power rests with Congress. However, that seems less and less likely in an election year with both parties struggling to appear extra tough on terror. In the meantime, we can do our part and stay armed with the facts.

[Related reading- The NSA fight begins - strategies for moving forward]