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
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.
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
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
Reprinted courtesy of TomPaine.com.