I hope I can be forgiven if animal images kept coming into my mind during the Senate Judiciary Committee hearing last week. On the eve of the first such hearing to be held by the newly-elected Democratic majority, Attorney General Alberto Gonzales sent a letter to Committee Chairmen Patrick Leahy (D-VT) and Arlen Specter (R-PA) announcing that, henceforth, the President’s Terrorist Surveillance Program would be conducted under the supervision of the Foreign Intelligence Surveillance Court. Listening to Alberto Gonzales “answering” questions about this development during the hearing, the thoughts I kept having were of seals and snakes: Had the administration really flip-flopped on warrantless electronic surveillance — like, say, a seal — or was it merely attempting to slither away — like, say, a snake?
Unfortunately, it appears to be the latter. As with so many of its other activities — pre-invasion intelligence fraud, detention of enemy combatants, systematic torture — the closer the Bush administration comes to intersecting with the law and with Congress on its illegal spying, in the words of Paul Simon, “the more you’re slip-slidin’ away.”
Well, Where Have We Been?
Unbeknownst to the American people and Congress — the phrase that should begin so many stories about the Bush administration — the President, starting in late 2001, authorized a secret domestic surveillance program to be run by the National Security Agency (NSA). By the time the secret wiretapping was revealed in a New York Times article on December 16, 2005, George W. Bush had issued more than 30 orders authorizing surveillance for what the administration claimed were foreign intelligence purposes, without ever attempting to comply with the Foreign Intelligence Surveillance Act (”FISA”). A law Congress enacted in 1978 to prevent the Executive Branch from conducting such surveillance without any court supervision whatsoever, FISA was simultaneously to provide a more expeditious procedure than that required for a standard search warrant.
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In the four years between the inception of the program and its revelation, the Bush administration affirmatively concealed its existence, with the President, famously, even going so far as to preemptively — and falsely — announce that “any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed by the way.”
Even worse, in that time span, Attorney General John Ashcroft and then Alberto Gonzales successfully negotiated with Congress four rounds of requested changes to FISA, the very statute they were routinely violating. Not once during the faux debate about security and civil liberty generated by the amendments they sought did the administration advise Congress in any official or unofficial way that it was violating the statute on a daily basis; nor did it seek revisions that would address the problems it later claimed existed.
Given such egregious conduct — conduct, in fact, unprecedented in our history — one would think Congress would take swift and decisive action. Hardly. An astoundingly earnest debate ensued over the administration’s ever-changing rationales and frivolous legal arguments (superbly reviewed at Glenn Greenwald’s excellent blog, Unclaimed Territory), but as Patrick Leahy described this sorry state of affairs:
“On March 31, 2006, the Senate Judiciary Committee held a hearing on Sen. Russ Feingold’s call to censure the President. This was the Committee’s fourth hearing to consider the President’s domestic spying activities. But while the Committee has now heard from a total of 20 witnesses, only one had any knowledge of the spying activities beyond what was reported in the newspapers. That witness was Alberto Gonzales, who flatly refused to tell us anything beyond ‘those facts the President has publicly confirmed, nothing more.’”
In short, neither Congress, nor the public knew anything more at the end of the Senate hearings in 2006 than they had known when the hearings began. The administration slithered off without being held to account for, or required even to superficially reveal, its activities. And Congress itself simply slip-slided away.
Where Did We Think We Were Going on January 17, 2007?
On January 17, it appeared that, under the leadership of Democratic Senator Leahy, we might begin to get some answers from Alberto Gonzales at the Senate Judiciary Committee Hearing scheduled for the next day about the President’s secret surveillance program: What is it? When did it begin? Who does it target? How are its targets chosen? Is it, as the law requires, particularized — directed toward a certain target — or simply a data-mining program that collects massive amounts of corporate and public online information and then cross-references it against U.S. intelligence and law-enforcement records? Who carries it out? What is the legal justification for surveillance outside the FISA statute?
It also seemed that we were proceeding in an orderly fashion towards a judicial review of the NSA spying program. In August 2006, in the case of ACLU et al. v. NSA, United States District Judge Anna Diggs Taylor of the Eastern District of Michigan ruled that the administration’s National Security Agency warrantless surveillance program must be stopped, both because it violated FISA and because it constituted an unconstitutional violation of the First Amendment right to free speech and the Fourth Amendment right to be free from unreasonable searches and seizures. The United States appealed and, although the Sixth Circuit Court of Appeals stayed the execution of Judge Taylor’s order pending that appeal, it scheduled the oral arguments on the case for January 31, 2007. How the Court would rule is impossible to predict, but one possible outcome, of course, would be a decision that the administration’s domestic spying program is, as Judge Taylor had found, both unconstitutional and illegal under the U.S. Criminal Code; another would be a finding that the spying program was illegal based on one of those grounds.
From the administration’s point of view, in other words, as of January 17, the NSA eavesdropping plan was careening towards not one, but two very dangerous, intersections. What does the Bush administration ever do under such circumstances? Address its adversaries and make its arguments openly and honestly? No. Its modus operandi is always the same. It evades; it manipulates the system; it darts away — or at least it tries to.
In this case, by preemptively announcing that it was no longer going to conduct the program whose existence it had hidden completely for four years — and sparred with Congress about for the next 18 months — the administration clearly fervently hoped that it could wriggle away from congressional and judicial oversight. The ploy was, in other words, less a flip-flop than a slither. But the maneuver, clever as it appears at first blush, is hardly a surefire remedy for the administration’s problems.
Where the Heck Are We Now?
On the same day that the Department of Justice announced its decision not to reauthorize its unilateral, illegal wiretapping program, it notified the Sixth Circuit Court of Appeals that it would be submitting documents setting forth its arguments regarding the effect of this decision on the pending appeal. Clearly, the government lawyers intend to argue that the case is moot: There’s nothing left to decide because we’re not doing it anymore.
There are, in fact, many legal counterarguments to this facile approach. For one thing, even if one assumes, for the sake of discussion, that the FISA problem has been addressed by the administration’s new plan, the constitutional questions might still remain. There is another significant argument that weighs against the dismissal of the case for which the administration has been so cleverly maneuvering — a doctrine holding that the court should still hear controversies that may have been resolved when the issue under consideration is “capable of repetition, yet evading review.” This doctrine is particularly applicable to this situation, where neither the Court, nor Congress, nor the public have any way of knowing whether the administration has in fact abandoned its previous practices or whether it will ever decide to reinstate them. For such determinations, everyone has to rely on the word of Alberto Gonzales and the whims of the Department of Justice. The American Civil Liberties Union and the many diverse plaintiffs who have joined its lawsuit — Greenpeace, writer Christopher Hitchens, and Larry Diamond of the Hoover Institution, to name a few — will certainly make this powerful argument in the weeks to come.
The same rationale argues powerfully in favor of Congress forging ahead, regardless of Gonzales’s bland assurances. Not only do we not have any guarantee that the administration is doing what it says its doing, or will continue to do what it says it plans to do, we still don’t have the remotest idea what that plan is. As Senator Chuck Schumer (D-NY) pointed out during questioning of Gonzales, we don’t know whether the warrants now being issued involve specific targets, as is required by FISA, or whether the Foreign Intelligence Surveillance Court has simply agreed to give blanket approval to warrants directed at a large group of targets, the very problem that Congress has theoretically been trying to address since early 2006: “If it’s a very broad-brush approval — and again, because it’s secret, we have no way of knowing — it doesn’t do much good,” Schumer commented.
We do, however, have a remarkably consistent track record on this matter, which should tell us something. We know that none of the administration’s conduct with regard to Congress and the National Security Agency domestic spying program has been undertaken in good faith. Indeed, the second phase of this odyssey, from December 2005 when the secret program was revealed, to the present, begins with the same phrase as the first: Unbeknownst to the American people and Congress…
Unbeknownst to the American people and Congress, during 2006, while everyone else — naively thinking we lived in a democracy -– engaged in this ongoing faux debate, earnestly trying to divine what the administration was actually doing, discussing the pros and cons of the nearly laughable arguments they were making in support of whatever it was, and in good faith attempting to craft amendments to FISA that would accommodate the unique requirements of whatever it was that no one knew, the Bush administration was acting entirely on its own as if neither the public, nor Congress even existed.
We may still be stumbling around in the dark, struggling to get a grip on what the administration is doing, but we are getting nearer to the destination; this, then, is decidedly not a good time for Congress to be slip-slidin’ away. On the contrary, wouldn’t this be a good time to reach for a subpoena?
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