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.

Thursday, February 09, 2006

A Catch-22 for the Administration

(updated below)

This article by The Washington Post's Dan Eggen (who, as I've said before, has been one of the best journalists by far covering this story) analyzes one of the truly inexplicable aspects of the Administration's rationale for its warrantless eavesdropping program -- namely, why the program is limited only to international calls.

If, as the Administration claims, FISA is too stringent and burdensome to enable the "speed and agility" we need to keep up with the lightning-fast communications of Al Qaeda, and if (as the Administration constantly claims) Al Qaeda has sleeper cells within the U.S. similar to those which perpetrated the September 11 attacks, what possible excuse could there be for applying the FISA-bypass program only to international calls while allowing Al Qaeda to communicate freely within our country?

Here is what Gonzales said about this on Monday when questioned by Sen. Kohl:

KOHL: Just to go back to what Senator Biden and then Senator Kyl referred to about Al Qaida-to-Al Qaida within the country, you're saying we do not get involved in those calls...

GONZALES: Not under the program in which I'm testifying, that's right.


KOHL: It seems to me that you need to tell us a little bit more because to those of us who are listening, that's incomprehensible. If you would go Al Qaida-to-Al Qaida outside the country -- domestic- outside the country but you would not intrude into Al Qaida-to-Al Qaida within the country -- you are very smart, so are we, and to those of us who are interacting here today, there's something that unfathomable about that remark.

GONZALES: Well, Senator, we certainly endeavor to try to get that information in other ways if we can. But that is not what the president...

KOHL: No, but isn't -- we need to have some logic, some sense, some clarity to this discussion this morning.

GONZALES: Senator, think about the reaction, the public reaction that has arisen in some quarters about this program. If the president had authorized domestic surveillance, as well, even though we're talking about Al Qaida-to-Al Qaida, I think the reaction would have been twice as great.

And so there was a judgment made that this was the appropriate line to draw in ensuring the security of our country and the protection of the privacy interests of Americans.

KOHL: I appreciate that. And before I turn it back to the -- but yet the president has said with great justification, he's going to protect the American people regardless.

KOHL: And if there's some criticism, he'll take the criticism.And yet you're saying Al Qaida-to-Al Qaida within the country is beyond the bounds?

GONZALES: Sir, it is beyond the bound of the program which I'm testifying about today.

This exchange can mean only one of two things: either (1) the President decided not to pursue measures (i.e., FISA-bypass eavesdropping on domestic communications) which he believes are vital to our national security because doing so would have subjected him to criticism from "some quarters," or (2) the Administration, contrary to the repeated and unequivocal assurances from the President, is engaging in warrantless eavesdropping on purely domestic communications as part of some eavesdropping program other than the one disclosed by The New York Times.

In a separate article published the day after the hearings, Eggen reported this:

Gonzales chose his words carefully, frequently limiting his answers to "this program" or to "the program the president has confirmed." At one point he said senior Justice Department officials, whose concerns about the program contributed to a temporary halt in surveillance in 2004, did not raise objections to the program he was discussing.

A department official said after the testimony that Gonzales was not implying that any other program existed.

When the Justice Department says that "Gonzales was not implying that any other program existed," that is not, of course, tantamount to stating that no other program exists. As I've noted before, every time Gonzales or the DoJ has issued assurances that eavesdropping is confined only to international calls where one of the parties is an Al Qaeda affiliate, the assurance is always limited by the conspicuous and intentional limitation: "under the program described by the President." Gonzales used that same phrase repeatedly when testifying, and there is simply no doubt that this phrase is carefully crafted and deliberately invoked. There is some reason why they are limiting their assurances in that fashion.

This should be a very difficult corner for the Administration to get out of. Both options are unattractive. It is self-evidently inexcusable for the President to forego measures he believes are vital to the protection of Americans simply because (as Gonzales said Monday) pursuing those measures would provoke some criticism. But it would be equally damaging to the Administration, at least, if it turns out that there are programs which entail warrantless eavesdropping on the domestic communications of Americans.

If there is one thing which Americans likely have ingested from the Administration's defense of itself in this scandal, it is that the only calls subject to warrantless surveillance are international. It would be a huge blow to the Administration if it turns out, as Gonzales is clearly implying, that there are other programs which entail warrantless surveillance of purely domestic communications.

Either the Administration is purposely allowing Al Qaeda to communicate freely within the U.S. without meaningful surveillance (i.e. surveillance that is not bogged down by those obstructionist, cumbersome FISA requirements) , or the President repeatedly lied when he assured Americans that no domestic communications were being listened to without warrants. A third option doesn't appear to exist for the Administration.

UPDATE: Although there are multiple times when Gonzales strongly implied that there were other eavesdropping programs beyond what "the President confirmed," the following exchange between Gonzales and Sen. Schumer provides an almost absolute assurance from Gonzales that there is no warrantless eavesdropping program for domestic communications:

SCHUMER: Would he engage in electronic surveillance when the phone calls both originated and ended in the United States if there were Al Qaida suspects?

GONZALES: I think that question was asked earlier. I've said that I don't believe that we've done the analysis on that.

SCHUMER: I asked what do you think the theory is?

GONZALES: That's a different situation, Senator. And, again, these kind of constitutional questions -- I could offer up a guess, but these are hard questions.

SCHUMER: Has this come up? Has it happened?

GONZALES: Sir, what the president has authorized is only international phone calls.

SCHUMER: I understand.

Gonzales' unambiguous claim here that the Justice Department has not conducted a legal analysis as to whether the Administration could engage in warrantless eavesdropping on purely domestic communications certainly would seem to preclude the existence of a domestic eavesdropping program. Particularly since Gonazles acknowledged that domestic eavesdropping is a "different situation" which presents "hard questions," a pre-requisite to the commencement of such a program would be for the DoJ to opine that such surveillance was legal and constitutional.

Gonzales' denial that the DoJ has ever engaged in such a legal analysis is tantamount to an unambiguous denial that there are eavesdropping programs which entail warrantless surveillance on domestic communications. That fact leads back to the question as to why the President, who believes that we cannot engage in adequate surveillance if we stay within FISA, would leave Americans vulnerable and unprotected by restricting his FISA-bypass program only to international calls, thereby handing Al Qaeda the ability to communicate freely and undetected within our borders. What kind of President would fail to take measures vital to our national security simply because -- as Gonazles claimed when asked why there was no domestic surveillance -- he would be subject to criticism from "some quarters."

Asking this question is not a coy tactic. If the President really believes that we can't engage in effective surveillance of Al Qaeda under FISA, isn't it a profound dereliction of his responsibilities not to extend the FISA-bypass program to domestic communications? There is no theoretical or legal difference between international calls and domestic calls in this context, so it seems that the only possible explanation for his failure to do this is exactly what Gonzales said - he was afraid to be criticized for doing it, so he opted instead to allow Al Qaeda to communicate within the U.S. without detection.

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