We have hit the point where paranoia is a proper frame of mind for assessing nearly everything this administration says or does.
The moment arrived Thursday, when USA Today revealed that the National Security Agency has been secretly collecting the phone records of tens of millions of Americans, with the aim of creating “a database of every call ever made,” to people not only abroad but also within our borders.
This goes well beyond the scope of the NSA domestic-surveillance program revealed last year by the New York Times. President George W. Bush responded to that story by emphasizing that, under the terms of the program, “one end of the communication must be outside the United States.” That assurance turns out to have been highly deceptive, if not an outright lie.
The NSA program, even such an expansive one, might be a good idea. As described by USA Today, it does not involve monitoring or recording the content of all these phone calls (an activity that no agency would have the time to do anyway). Rather, officials describe it as “data mining,” for the purpose of “social network analysis.”
Let’s say X is suspected of planning terrorist activities. It might be useful to know who’s been talking with X and who’s been talking with those people. The feds wouldn’t just want to take down X. They’d want to take down his whole network. By the time they discover what Xis up to, it might be too late to monitor his future calls; so they’d want to know about his past calls. They can’t guess, ahead of time, who those people might be—hence the idea of creating a comprehensive database.
Again, this isn’t necessarily a bad idea. But here’s the crucial issue: The executive branch of the government cannot be trusted with sole access to such massive and intrusive information. This has nothing to do with who the president is; it has everything to do with the nature of power. To dispute this fact is to dispute the need for checks and balances; it’s to dismiss the constitutional premise of the U.S. government.
All this was widely recognized back in the 1970s, when Congress passed the Foreign Intelligence Surveillance Act and created the FISA court—whose records would be secret and permanently sealed—to enforce it.
The issues back then were similar to the issues today. (For a fuller history of what follows, click here.) In 1967, the Supreme Court ruled in Katz v. the United States that Fourth Amendment protections apply to wiretaps—except when national security is involved. Nothing in the law in question, it ruled, “shall limit the constitutional powers of the President to take such measures as he deems necessary to … obtain foreign intelligence information deemed essential to the security of the United States.”
However, in 1972, the court noted in The United States v. U.S. District Court that the Katz ruling “implicitly recognizes that the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitates the application of Fourth Amendment safeguards.” Noting that statutory guidelines didn’t resolve this constitutional tension between national security and civil liberties, the court invited Congress to write new laws that did.
In 1974-75, Sen. Frank Church’s Senate committee uncovered the vast extent of U.S. intelligence agencies’ illegal domestic surveillance. So, in 1978, six years after the court threw down its challenge, Congress passed the Foreign Intelligence Surveillance Act, which created a procedure by which a president, through the attorney general, can request warrants for surveillance outside normal court procedures. As many have noted, the FISA court usually behaves as a rubber stamp; it considers no opposing motions, and it rejects very few requests. This is as Congress intended. The idea was not to create a fierce watchdog, only to provide a little outside supervision—a bump in the road to let the White House and the intelligence agencies know that they can’t use their secret powers in whatever way they like.
The problem with the indiscriminate data-mining that USA Today details is that it’s not susceptible to warrants. Under FISA, the application for a surveillance order must include the identity or description of the target, the nature and location of the place being tapped, the type of information being sought, how long the monitoring will last, and so forth. There’s no way, under any law, that an attorney general could ask any court to approve surveillance of everybody, everywhere, forever. That goes beyond what warrants of any sort can do.
However, none of this snuffs out the spirit of FISA or nullifies the rationale for a FISA court—to provide a modicum of supervision over the executive branch’s massive intrusion upon privacy rights.
Here’s where we all have cause to be paranoid. It is clearer than ever that President Bush, Attorney General Alberto Gonzales, and most of those around them are not the slightest bit interested in checks or balances or even in conveying the impression that they’re interested. Their official response to Leslie Cauley’s story in USA Today is the same as their response to James Risen’s story in the New York Times last year: What we’re doing is by definition legal, so back off. There isn’t a hint of recognition that they’re not the only ones to determine what is legal. They don’t acknowledge what even many Republican legislators are now recognizing: that the laws in question are vague—in part deliberately, in part because they lag behind the technology—and that it might be a good idea to clarify the law or write new ones. Their solution to all ambiguities is to issue a sweeping edict: l’Etat, c’est le président.
This dispute is not over some legal fine point; it has all the makings of a constitutional crisis. Even on a less vaunted level, we are in the alarming predicament of facing a president who—at least on this issue—possesses absolute power. Bush and Gonzales may say they won’t use the NSA data improperly. But there is nobody who can verify that claim.
Here’s a hair-raising example reported, also on Thursday, by the New York Times’ Scott Shane. The Justice Department’s ethics office had to shut down its months-long probe into who approved the NSA’s domestic-surveillance program, because the investigators were blocked from obtaining the necessary security clearances. “Without these clearances, we cannot investigate this matter,” H. Marshall Jarrett, head of Justice’s office of professional responsibility, wrote to Congress, “and therefore have closed our investigation.” It was for such stories that the word “Kafka-esque” was coined.
The House and Senate need to determine whether this data-mining program is necessary. If they decide it is, they need to create some new independent agency with the statutory power, which the FISA court doesn’t have, to supervise the program—including notification of, and veto power over, any action any agency wants to take as a result of this surveillance (for instance, if the NSA uncovers a terrorist network and the Justice Department wants to monitor the members’ phone conversations).
Bush’s approval rating has dipped below 30 percent. Republicans seeking re-election don’t want to go down with his ship. Several of them have a libertarian bent that makes them hostile to domestic surveillance on substantive grounds. Who knows? Maybe on this slap, Congress will finally stand up and slap back.