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.

Tuesday, January 17, 2006

The Administration's NSA playbook is empty (updated)

It’s been more than a month since The New York Times first disclosed the existence of Bush’s illegal NSA eavesdropping program. One would think that the Administration by now has developed all of the defenses and justifications for this program which exist.

If last night’s CNN interview by Larry King of Attorney General Alberto Gonzalez is any indication, there simply are no justifications for it. The Administration is still incapable of answering the very first question which arose when this eavesdropping was first disclosed: why couldn’t the Administration comply with the extremely permissive provisions of FISA when eavesdropping? This CNN interview also demonstrates that the country’s most prominent "journalists" are still incapable of asking any probing or meaningful questions of our Government with regard to this scandal:

KING: General, isn't there a happy medium? Isn't there a way to get quickly to a judge who signs off on a warrant to tap or listen in? Isn't there a way to do that quick?

GONZALES: Larry, whenever you involve another branch of government in an activity regarding electronic surveillance, inherently it's going to result in some cases in delay. Perhaps in straightforward cases we can get authority relatively quickly but not all of these cases are straightforward and it's very, very important that the president has the agility and the speed to gather up electronic surveillance of individuals that may be in contact with the enemy.

Unbelievably, both King’s question and Gonzalez’s answer are predicated on the assumption that FISA prohibits eavesdropping until a warrant is obtained from the FISA court. Larry King is apparently unaware that FISA allows the Administration to begin eavesdropping immediately without a warrant, and they therefore don't need "to get quickly to a judge who signs off on a warrant to tap or listen in."

As a result, King was incapable of following up on Gonzalez’ answer by asking the painfully obvious question: since FISA allows for immediate warrantless eavesdropping, in what conceivable way does it fail to provide the "agility and the speed" to eavesdrop? (And had King managed to pose that question, he also could have asked: if FISA was inadequate, why didn’t the Administration seek changes to it from the GOP-controlled House, rather than simply deciding to violate it in secret?).

It appeared from the beginning of this scandal -- and it has now become unavoidably true -- that there is something deeply dishonest going on here. It’s axiomatic that if someone provides a completely incoherent reason for why they did something, they’re not disclosing their real motive. The need for "speed" in eavesdropping is plainly not why the President ordered FISA to be violated, because FISA expressly allows for immediate eavesdropping, and it doesn’t get any speedier than "immediate."

We still don’t know why the Administration broke the law here, what motive it had in refusing to comply with FISA. There don’t seem to be that many possibilities. It could be that the President simply believed that he should not be required to get permission from a court to eavesdrop on whomever he wants. It could be that the Administration wanted to install its theory of the President’s wartime law-breaking powers. And it could be that the Administration wanted to eavesdrop for reasons which the FISA court would not endorse.

What is clearly the case, as demonstrated by Gonzalez’s answer, is that whatever the Administration’s motives were for violating FISA, we have not yet learned what they are. In lieu of real answers to these questions, the Administration still thinks that it can get away with treating Americans, and our journalists, like idiots, by having Gonzalez say things like this:

We need to know who the enemy is. We need to know what the enemy is thinking. We need to know where the enemy is thinking about striking us again. And so
absolutely, this president is going to utilize all the tools that are available to him to protect this country and I think the American people expect that of the president of the United States, who is the only public official charged, not only with the authority with the duty of protecting all Americans.

And this:

And so, as the president said if someone in the United States, if you're an American citizen and you're talking to al Qaeda, we want to know why. I think it's very, very important that we know about communications that are occurring within the United States to folks outside the United States that may be affiliated with al Qaeda.

We know that on the attacks, with respect to the attacks on September 11th, we had the enemy here in our country and they obviously communicated with each other in order to initiate those attacks and that's why it's so very, very important that we have electronic surveillance of communications involving the enemy.

Whenever the Administration is asked why it violated the law, it spews out tributes to the Great Importance of Eavesdropping. Larry King is incapable of understanding this, but the issue is not whether the Administration should eavesdrop. Can’t journalists ingest the simple fact that whenever someone who is defending the Administration starts talking about the merits of eavesdropping, that is a loud and immediate signal to whatever journalist is being fed that rhetoric that the person is evading, not addressing, the issue?

This is not a hard point to understand. Everyone agrees we should eavesdrop. We all want eavesdropping on terrorists. That’s why a law exists which allows such eavesdropping, provided that it’s done with judicial oversight so that the Administration can’t abuse this power. Larry King doesn’t understand this distinction but Americans will, once Bush opponents articulate it clearly.

Gonzalez also wanted to assure us that there is no reason to have anything like a Special Prosecutor investigate the legality of the President’s conduct because a team of excellent, highly skilled lawyers has already looked at that conduct and concluded that everything was perfectly legal:

KING: Back to former Vice President Gore asking for a special counsel to investigate, would you object to that?

GONZALES: Well, I don't know why -- I don't know why there would be a need for a special counsel at this time, Larry, because what I can tell you is that from the very beginning, from its inception this program has been carefully reviewed by the lawyers at the Department of Justice and other lawyers within the administration and we firmly believe that the president does have the legal authority to authorize electronic surveillance in order to gather up foreign intelligence particularly, Larry, when we're talking about foreign intelligence of the enemy in a time of war.

Why would Al Gore possibly want a Special Investigator to examine the legality of George Bush’s conduct when George Bush’s own lawyers in the Justice Department already looked at it and said it was fine? Besides, when it comes down to it, says the U.S. Attorney General, legalities, shmegalities - "we're talking about foreign intelligence of the enemy in a time of war." That is the only defense the Administration has.

Finally, there was this odd exchange:

KING: Are you assuring that American citizens with nothing to hide have nothing to worry about?

GONZALES: Well, again, as the president indicated, and I'm only talking about what the president described to the American people in his radio address, we're talking about communication where one end of the communication is outside the United States and where we have reason to believe that a party on that communication is a member of al Qaeda or is a member of an affiliate group with al Qaeda.

King asked Gonzalez whether innocent Americans "have nothing to worry about" in terms of eavesdropping by the Government, and Gonzalez -- in claiming that it’s only Al Qaeda whom we’re eavesdropping on -- went out of his way to limit his assurances by saying that he’s "only talking about what the president described to the American people in his radio address." That would seem to suggest that there is eavesdropping on Americans outside of "what the President described to the American people in his radio address." What was Gonzalez referring to there? (And it's always worth noting that if we're only eavesdropping "where we have reason to believe that a party on that communication is a member of al Qaeda or is a member of an affiliate group with al Qaeda," then it becomes that much more difficult to explain why FISA warrants couldn't have been obtained for such eavesdropping).

The real point which emerges from this whole interview is this: the Administration can defend its law-breaking only with evasions and distractions. Its only tactic for justifying its conduct is to make irrelevant appeals to the need to "protect the American people" by eavesdropping which is clearly not a justification at all. That is why it is so imperative for Bush opponents to speak loudly, clearly and relentlessly on this issue. Once Americans understand that the Administration can eavesdrop on Al Qaeda to its heart’s content in compliance with the law -- and that everyone, including Bush opponents, wants full-fledged eavesdropping on Al Qaeda --Americans will want to know the real reason for the Administration's decision to break the law and to eavesdrop on Americans in secret.

UPDATE: As for the misleading claim advanced by Gonazalez and Bush followers in the blogosphere that "Clinton did it, too," Think Progress makes clear just how frivolous that argument is.

My Ecosystem Details