I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, January 27, 2006

The Administration's humiliation of Congress

Since the NSA scandal began, one of the most bizarre aspects of the story is that the Administration has been claiming that Congress authorized it to eavesdrop in violation of FISA, but the Congress which is said to have done so had no idea that the Administration was engaged in warrantless eavesdropping and had no idea that it had authorized eavesdropping in violation of FISA. Beyond that fact, the actions of the Congress throughout 2002 make undeniably clear that Congress was not only completely unaware that the Administration was eavesdropping outside of FISA, but also that Congress was deliberately misled by the Administration into believing that FISA continued to govern the Administration's eavesdropping activities.

As was revealed a couple of days ago, Sen. DeWine had proposed legislation to liberalize the requirements of FISA in order to enable broader eavesdropping power. That fact, by itself, shows that Sen. DeWine at least assumed that the Administration was bound by FISA in its eavesdropping activities (why else would he bother to liberalize FISA unless he thought that it actually governed what the Administration could and could not do?).

But Sen. DeWine wasn’t the only Senator attempting to amend FISA in 2002. In addition to his legislation, there was also a proposed amendment (S 2586) co-sponsored by Sens. Charles Schumer and John Kyl in 2002 which was intended to eliminate the requirement in FISA that a surveillance target be "an agent of a foreign power" and instead allow eavesdropping on any non-U.S. person "engaged in international terrorism or activities in preparation therefore.''

Obviously, the assumption of Sens. DeWine, Schumer, and Kyl was that it actually mattered what FISA said because FISA was the law that governed the scope of the Administration’s eavesdropping powers. Of course, we now know that while the Senate was debating all sorts of proposed changes to FISA in order to expand the Administration’s eavesdropping powers, it actually did not matter at all what FISA said, because the Administration had decided that it could do whatever eavesdropping it wanted regardless of whether FISA allowed or prohibited that eavesdropping.

Indeed, throughout 2002 and into 2003 – while the Administration was secretly eavesdropping without bothering to comply with FISA at all – Senators from both parties were drafting legislation to liberalize FISA, holding hearings before the Senate Intelligence Committee on proposed FISA changes, making all sorts of grand statements about how these changes to FISA were needed in order to allow the Administration to do the eavesdropping on terrorists which our national security required.

But all of this was worthless, a total sham. Nothing could have mattered less than what the Senate decided to do with FISA because the Administration -- obviously unbeknownst to the Senate -- had already decided that it could eavesdrop however it wanted no matter what the Senate said and no matter what FISA allowed. Despite this, the Administration allowed the Senate to go through the embarrassing spectacle of acting as though it had authority with regard to the Administration’s eavesdropping and, worse, even encouraged that illusion by participating in the Senate hearings and pretending that it mattered what the Senate did with FISA.

An institutional humiliation greater than this is difficult to imagine. The transcripts of the hearings held by the Senate Intelligence Committee in July, 2002 (h/t Marc Schulman) -- hearings devoted to examining and debating both Sen. DeWine’s FISA amendments as well as those co-sponsored by Sens. Schumer and Kyl -- make conclusively clear that the Senate had no idea that the Administration was eavesdropping outside of FISA. Not only did they have no idea, they clearly were of the belief that the Administration was eavesdropping only within the legislative parameters set by Congress.

Here is what Sen. Bob Graham, Chairman of the Intelligence Committee, said when opening the hearings on these proposed FISA amendments:

The two bills that we are here to discuss today will provide additional changes to FISA for the purpose of reducing both the nature and scope of the showing the government must make to obtain a surveillance order against suspected terrorists inside the United States who are neither citizens nor legal resident aliens. As we did with the changes made in FISA last year, the Congress must examine revisions of this nature to assure that they strike the proper balance between enhancing our ability to fight terrorism while protecting our privacy and liberties. That is the purpose of the hearin gtoday.

Contrary to Sen. Graham’s quaint belief that FISA defined "both the nature and scope of the showing the government must make to obtain a surveillance order against suspected terrorists inside the United States," the Administration had unilaterally decided that it itself would decide the nature and scope of its surveillance, not Congress and not FISA. And his belief that it was Congress which had the obligation to "assure that they [FISA amendments] strike the proper balance between enhancing our ability to fight terrorism while protecting our privacy and liberties" must have provoked great laughter at the White House, which had long before decided that it would eavesdrop however it wanted regardless of what Congress had to say.

Similarly, here is what Sen. Schumer said in explaining why he thought his FISA amendments were so important:

Now, Senator Kyl's and my goal, quite simply, is to make it easier for law enforcement to get warrants against non-U.S. citizens who are preparing to commit acts of terrorism. Right now the government is required to show three things before it can get a warrant for national security surveillance. . . .

I believe the Vice President, the FBI Director, and the Secretary of Defense when they say other attacks are planned. Right now there may well be terrorists plotting on American soil. We may have all kinds of reasons to believe that specific individuals in our communities are preparing to commit acts of terrorism, but we can't do the surveillance we need to do because we can't tie them to a foreign power. . . .

It's important to note that if our bill becomes law it will immeasurably aid law enforcement without exposing American citizens and permanent legal resident aliens to the slightest additional surveillance. This law will only affect non-citizens and non-green card holders. And the language we're proposing is the same language the Administration sent up here during the debate over the Intelligence Authorization Bill. Attorney General Ashcroft has given his stamp of approval. And I look forward to working with Senator Kyl and perhaps Senator DeWine, if we end up collaborating a little further--Senator Kyl mentioned to me in the subway yesterday that we might be--to help this bill become law.

So Attorney General Ashcroft told Sen. Schumer that he supported the FISA amendments offered by Sens. Schumer and Kyl – apparently without bothering to mention that the Administration actually did not need any FISA amendments because it was doing just fine engaging in whatever eavesdropping they wanted regardless of what FISA said. And Sen. Schumer went on and on about how it was so important to enact his amendments liberalizing FISA because it would expand the Administration’s eavesdropping capabilities -- when, in reality, the Administration was already doing exactly that eavesdropping based on its view that Congress had no power to define or restrict its eavesdropping powers under FISA.

Sen. Kyl also was under the (false) impression -- deceitfully re-inforced by the Justice Department -- that it actually mattered what changes he thought should be made to FISA:

And we have assurances from the Department of Justice, which we'll get later, to this effect, and which would . . . be a very helpful way to amend the statute so that we could deal with this problem of the individual who we have reason to believe, have probable cause to believe, is engaged in some kind of international terrorist activity or planning, but who we can't at this moment connect up to a specific country or terrorist group.

We could work with our friends in the Judiciary Committee, of which both Senator Schumer and I are members, and we could get it in--and Senator DeWine, I might add--and that we can move quickly to get the support of our colleagues and put this important tool into the hands of law enforcement and intelligence agencies here in this country so that we can add one more element to the protection of the American people.

After that, Sen. DeWine explained why his amendments were needed, and revealed that he, too, thought that the Administration’s eavesdropping powers were defined by the laws enacted by Congress rather than by the Administration acting unilaterally and in secret:

My FISA reform bill would offer us a chance to improve our intelligence gathering and a chance to improve our ability to prevent future attacks. It would make it more likely that we could use FISA surveillance more often to gather the data that we need to fight terrorism.

Sen. DeWine seemed to believe that his FISA amendments were necessary to broarden "our intelligence gathering" because he was obviously unaware that the Administration had unilaterally arrogated that power unto itself and had no need for Sen. DeWine's cute little FISA amendments.

After the Senators on the Intelligence Committee spoke about why their FISA amendments were so important and why it was so necessary to amend FISA in order to expand the Administration’s eavesdropping capabilities, various Administration officials from the Justice Department, the FBI and the CIA all testified about their views concerning these amendments. Each of them acted as though it mattered what Congress did with regard to amending FISA – they all gave the impression that it was Congress through FISA that determined the scope of the Administration’s eavesdropping powers – and never once stated, suggested, implied or even hinted that the Administration, months before, had decided that it could eavesdrop far beyond the mandates of that law.

Indeed, the Justice Department’s James A. Baker affirmatively (mis)led the Committee into believing that FISA continued to be the law which governed what eavesdropping the Administration could or could not engage in:

As Mr. Bowman suggested, if we expect that there are cases out there that would fit within this new category, then you would invariably have surveillances of additional targets. So you would be, you know, connecting electronic surveillance and potentially physical search of those targets and that raises all the same kinds of civil liberties questions that FISA does to begin with. But nevertheless, you would have had--before you get to that point, you would have had a finding by a neutral and detached magistrate, and indeed in this case a sitting federal judge, district court judge, that all of the requirements of the statute are met and that there's probable cause to believe that this individual is engaged in international terrorism activities, or activities in preparation therefor.

You also have certifications by the Director of the FBI that this is legitimate for an intelligence purpose and approval by the Attorney General that the application meets the requirements of the Act. So you would have more surveillances perhaps but they would be done in accordance with all the other provisions of FISA. And FISA, as you know, when it was enacted was designed to carefully balance national security versus individual liberties.

Someone needs to ask the Administration why Mr. Baker told the Senate Intelligence Committee that their proposed amendments would increase the scope of surveillance targets when, in reality, the Administration had already increased the scope of those targets regardless of what FISA said. And someone also needs to find out why Mr. Baker falsely assured the Committee that before anyone’s conversations could be eavesdropped on, "you would have had a finding by a neutral and detached magistrate, and indeed in this case a sitting federal judge, district court judge, that all of the requirements of the statute are met." Of course, the Administration was eavesdropping without any such judicial oversight at all.

This whole FISA-"bypass" program was a complete hoax perpetrated on Congress. The Senate sat there in 2002 holding hearings on whether FISA should be amended to increase the surveillance powers of the Administration even while the Administration had decided that FISA was totally irrelevant.

But they let these Senators waste their time and resources holding hearings, calling witnesses, debating these issues, without notifying them that the Administration had freely been eavesdropping for months in violation of FISA and continued to do so. In fact, the Administration clearly misled the Senate into believing that FISA did govern the Administration’s eavesdropping powers by having the Attorney General and various Administration representatives either endorse or otherwise give their input on these proposed amendments, as though they mattered at all.

Unless these Senators have relinquished every last iota of their dignity, how can they not be furious at this complete contempt shown by the Administration towards both the Congress and our nation’s democratic, law-making processes? The Administration allowed, and even encouraged, the Senate to operate on the assumption that the Administration was abiding by FISA and that it therefore mattered what the Congress did with that law. This deceit led the Congress to engage in a ridiculous sham where it solemnly debated changes to a law which the Administration had secretly decided it did not need to abide by and thus was violating.

Additionally, the Administration should not be able to get away with claiming with a straight face that Congress was not only aware of its FISA-violating eavesdropping activities, but also that Congress had actually somehow "authorized" it. Here is the Senate Intelligence Committee clearly operating on the exact opposition assumption – namely, that FISA is still the governing framework for eavesdropping on suspected terrorists, and that the only way to increase the Administration’s eavesdropping powers is by amending FISA.

It should be very difficult for Senators – or for anyone who actually still believes in representative democracy and the basic governing principles of our country – to read the transcript of these Senate hearings without cringing with embarrassment for these Senators who were so plainly misled by the Administration. The Administration led the Senators to act as though their decisions on FISA were of grave importance to the country when, in reality, the Administration had already decided that there was actually nothing less important or consequential than what the Senate decided because the Senate had no power whatsoever to regulate the Administration’s eavesdropping activities.

At any point, the Administration could have easily said that they did not need amendments to FISA because the AUMF already gave them all the authorization they needed to eavesdrop in violation of FISA. Why didn't they say that if they really thought that Congress had given them that authority? That would have made all of these FISA amendments which the Senate was pitifully debating totally unnecesssary.

It is impossible to review the events in the Senate with regard to these proposed FISA amendments and continue to claim that the Senate was aware of and had authorized the President to eavesdrop outside of FISA. To the contrary, the Administration deliberately misled the Senate into believing that FISA still governed eavesdropping in this country, and the Senate labored under that false assumption until a month ago, when The New York Times revealed that the Administration had been eavesdropping since late, 2001 in deliberate violation of FISA.

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