On Dec. 19, Attorney General Alberto Gonzales and Deputy Director of National Intelligence Gen. Mike Hayden held a press conference in which they once again misled the American people.
Gonzales and Hayden answered questions about reports that the National Security Agency (NSA), which Hayden directed from 1999 to 2005, was eavesdropping on Americans via a special program in violation of the Foreign Intelligence Surveillance Act (FISA). The implications for privacy – and our system of checks and balances – are immense.
As long as he read from his prepared statement, Attorney General Gonzales did just fine with the press. He conceded that FISA requires a court order to authorize the surveillance the president ordered the NSA to undertake, and then hammered home the administration’s "legal analysis:" the twin arguments that Congress’ post-9/11 authorization of force and the president’s power as commander in chief trump the legal constraints of FISA.
When the reporters’ questions began, though, Gonzales faltered and twice spilled the beans. Asked why the administration decided to flout rather than amend FISA, choosing instead a "backdoor approach," Gonzales said:
"We have had discussions with Congress … as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible."
So they went ahead and did it anyway.
Gen. Hayden’s remarks were equally intriguing: He conceded that the special program authorized by the president was "more aggressive than would be traditionally available under FISA," but stressed repeatedly that the new program deals only with international calls for short periods of time. In other words, U.S. citizens are monitored only sometimes – and just a little, so we are dealing with tiny incompatibilities with the FISA law… and, besides, the president has said he has the authority anyway. Hayden and Gonzales both stressed the need for "speed and agility."
But "speed and agility" cannot be the rationale for breaking FISA. The FISA law contains intentionally flexible provisions designed to provide speed and agility in expediting emergency requests. The law grants the attorney general enormous power and discretion to authorize secret "emergency" electronic surveillance and searches for up to 72 hours, before any court order is granted. No court order at all is required if the surveillance is terminated before the 72-hour period ends. So why did the Bush administration order the NSA to skirt the FISA law protecting Americans from eavesdropping? This remains the most puzzling question.
The most cynical and, I fear, the most direct answer can be gleaned from Vice President Cheney’s bizarre assertion – supported, no doubt, by a stack of in-house legal opinion – that in wartime, the president "needs to have his powers unimpaired." As noted above, on Dec. 19, Gonzales invoked the "inherent authority under the Constitution" of the commander in chief, as well as the equally ludicrous claim that Congress’ authorization of war after 9/11 trumps FISA – a claim that even the Washington Post has termed "impossible to believe."
These extreme views are the same ones that underpin the president’s decision to flout international and U.S. criminal law by approving practices like torture, until now almost universally rejected by civilized societies. The answer may be simple – "imperial hubris," one might call it. And if – as seems to be the case – senior leaders like Colin Powell acquiesce in torture and Gen. Mike Hayden in illegal eavesdropping, shame on them. This would merely show, once again, that absolute power truly does corrupt absolutely – indeed, that even closeness to absolute power can.
A more nuanced explanation may lie in the physics of the challenges faced by the NSA and the availability of sophisticated technologies not foreseen when the FISA law was passed in 1978. At the press conference, the attorney general issued a pointed reminder that there have been "tremendous advances in technology" since 1978. Recent press reports on the number of communications being monitored by the NSA suggest that the number may be so large as to be technically or practically impossible to take to the attorney general for approval as individual FISA "emergencies." Consistently high numbers of monitored communications could have trouble passing muster at the FISA court as "emergencies," for the exceptions would quickly swallow the rule.
A recent article by Charles Fried in the Boston Globe suggests that communications are now selected for monitoring based on highly sophisticated algorithm programs and that "at the first, broadest stages of the scan, no human being is involved – only computers." This, and the high numbers involved, would make it impossible to obtain "emergency" AG approval on an individual basis, as required by FISA.
As Gonzales has indicated, initial soundings were taken with Congress and the prognosis was deemed poor for obtaining NSA vacuum-cleaner-type authority to suck up communications – including those to or from Americans – from wires and the ether. But is that not what government lawyers are for; i.e., to devise ways to make such things legal and possible at the same time? There is no sign of any serious effort on the administration’s part toward that end. Rather, administration officials preferred to fall back on the "anyway" rationalization; i.e., the notion pushed by top administration lawyers that the president has the power to authorize eavesdropping anyway.
The vast quantity of communications reportedly intercepted by the NSA under this special program (New York Times reporter James Risen says "roughly 500 people in the U.S. every day over the past three or four years") makes suspect the president’s claim that all of the monitored communications have some link to al-Qaeda. If he is telling the truth, we are indeed in serious trouble; fortunately, his record with such statements does not inspire credulity.
Another concern is that, among the groups of American citizens most likely to be sucked up by the NSA’s vacuum cleaner – because of the nature of their work and their international calls/contacts – are members of Congress and journalists. A key question that raises its ugly head is this: If hundreds of calls and e-mails involving Americans are being intercepted each and every day, and juicy tidbits are learned about, say, prominent officials or other persons, there will be an almost irresistible temptation to make use of this information. Former FBI special agent Coleen Rowley, who for many years monitored court-authorized electronic surveillances and wiretaps relating to organized criminal and drug conspiracy groups, recently underscored how much one can learn about someone by listening in on his/her private communications. She reminds us that the blackmail potential is clear.
And the federal government has a long history of using domestic intelligence for just such purposes. J. Edgar Hoover, the first director of the FBI, was adept at using information so acquired not only to pursue those he suspected of Communist or "un-American" activities, but also to maintain his power and influence for 47 years over presidents, members of Congress, and other power brokers. The FBI’s COINTELPRO activity’s use of such information to harass and discredit Dr. Martin Luther King Jr. is a particularly glaring example of such abuse. And Nixon’s access to such information gave him the inside track on how to neutralize those on his long "enemies list."
Would you trust a Karl Rove, a Dick Cheney, an Elliot Abrams, an Alberto Gonzales, an I. Lewis Libby, a David Addington, or a John Bolton with such information? With the obsequious example set by Gen. Hayden, no director of the NSA is likely to keep it from them. What might they be likely to do with it?
Abuse of private information can transcend the loss of the personal privacy that so many say they are willing to trade for a bit more security. Rather, such abuse constitutes serious trammeling of civil liberties and – still worse – can tip the precarious balance of constitutional checks and balances. It was, after all, such abuses that were responsible for the passing of the FISA law in the first place.
Reprinted courtesy of TomPaine.com.
