The Senate Judiciary Committee hearings on the National Security Agency have yet to begin and already expectations are sinking as to what, if anything, they might produce. The only witness on Monday’s schedule is Attorney General Alberto Gonzales, who is sure to repeat the administration’s legal defense of the program and tout the assertion that it has helped make America safer. You can expect Gonzales to get a thorough tongue-lashing, from both sides of the aisle, about all aspects of the program—its basic reasonableness, its legal rationale, and the lack of substantive briefings about it to all but a handful of members of Congress. But that may be all of the news on-camera.
The real drama is what comes afterward, when Congress has to decide what to do next about oversight of the NSA. There is reason to expect that some lawmakers won’t lie down for the administration. Congress won’t kill the NSA program outright by withholding the agency’s funding or rescinding the authorization it gave the president after 9/11 to use military force to fight al-Qaida. No one wants to be the person who killed what is billed as the NSA’s ultimate terrorist-finding weapon. At the same time, with midterm elections coming and polls showing that the public supports domestic snooping only if it’s exclusively focused on terrorist communications, Congress isn’t likely to give the NSA a free pass. The challenge will be figuring out how to change the Foreign Intelligence Surveillance Act, which governs all domestic eavesdropping, so that the NSA’s methods are incontestably legal and legitimate.
Behind the scenes, Congress is first trying to figure out what exactly the program is. In his State of the Union address, President Bush described a narrowly focused “terrorism surveillance program” involving international calls made or received by an al-Qaida member or affiliate. But a number of technical experts, including some who are aware of the program’s technical details, have stressed to us that simple “wiretapping” doesn’t describe all that the NSA’s work encompasses. New York Times reporters Erich Lichtblau and James Risen reported in December that the NSA is combing through huge amounts of data to find leads. Former NSA director Michael Hayden appeared to deny last week that the program involves data mining. But this contradicts the impression made by earlier comments, in which he said the surveillance had a “subtly softer trigger.” It’s also at odds with Sen. Jay Rockefeller’s statement, in his 2003 letter to Vice President Cheney, that the NSA’s operation seemed to resemble the ill-fated Total Information Awareness data-mining program. In any case, Hayden’s statements left unanswered questions about the scale of the NSA’s operation.
Advocates of the president’s position argue that Congress cannot be trusted with a full explanation from the NSA. From a historical vantage point, this is partisan nonsense. It is accepted wisdom in Washington that since the formation of the House and Senate Intelligence Oversight committees in the 1970s, the majority of intelligence leaks have come not from Congress but from whistle-blowers in the executive branch. Moreover, there is ample precedent for sharing with public officials key intelligence sources and methods—appropriately safeguarded—when necessary to restore public confidence. In 1944, U.S. Army Chief of Staff Gen. George C. Marshall divulged to Republican presidential nominee Thomas Dewey the secrets of the military’s code-breaking successes against the Japanese and the Germans. The Republicans had been saying that Roosevelt had intelligence in advance of Pearl Harbor; Marshall wanted Dewey to know what the U.S. knew and did not know lest the accusations tip off the Japanese. Dewey kept the secret and stopped making code-breaking a campaign issue. There’s little reason to think that members of Congress today can’t be similarly trusted. As one Hill staffer said to us, “What could possibly be so sensitive that you can’t let the members of the intelligence committee in closed session, in secure rooms, discuss this?”
Without details, it will be hard for Congress to amend FISA to allow for the NSA’s activities. Is the problem that the law’s current standard, which demands that the special FISA court find probable cause before issuing a warrant, is too high given the flimsiness of the “subtle trigger” that starts surveillance? Or is the NSA raking in so many leads that there isn’t enough time to write up warrant applications for each one? And what does the snooping entail—is the NSA analyzing e-mail and telephone trends or actually listening in on conversations?
Judge Richard Posner, the law professor and polymath, writes in the New Republic that legal arguments are fine and good but ultimately beside the point if they fail to take into account the usefulness of the NSA’s work. The administration has publicly claimed that intelligence derived from this program helped disrupt a plot to use fertilizer bombs in London in 2004 and neutralized al-Qaida or affiliated extremists in Minnesota, New York, Ohio, and Oregon. A former Hill staffer told us she knew of NSA officials who speak of the technology involved as if of a gift from on high, because it has helped the agency learn more about how terrorists communicate and plan than was previously known. Unless you have clearance for counterterrorism information, there’s no way to assess such claims. Congress, however, could.
If indeed this program is as powerful as alleged, then the country needs it. But that doesn’t mean it should remain unregulated and dubiously constitutional. As legal commentator Stuart Taylor argued in this week’s National Journal, we “should be focusing on how to amend FISA to provide independent checks on abuse of the NSA program without compromising its effectiveness in preventing mass murder.” That’s the challenge for members of Congress. Let’s see how they do.