NSA Rope-A-Dope

This week was Attorney-General Alberto Gonzales' turn in the Senate Judiciary Committee's barrel (Sorry if the reference is obscure; it's the punchline to an off-color but most assuredly witty story, the recounting of which here would be equally as assuredly inappropriate - though the context would allow it...). Chairman "Snarlin' Arlen" Specter served up a telling prelude last Sunday morning when he told Tim Russert that the Bush Administration's legal reasoning in defense of the NSA terrorist surveillance program is "strained and unrealistic" and the program appears to be "in flat violation" of the Foreign Intelligence Surveillance Act.

Not for the first time, Senator Specter exposed for all to see his roaring ignorance. For the benefit of our lots and lots of readers, let's reset the board on what the NSA program is and is not:

The NSA program is not intended to detect and punish past crimes [or "spy on the American people"]. It is an intelligence program, designed - like every such signals intelligence program has been since a telegrapher rode with Confederate General J.E.B. Stuart's cavalry to give Stuart the benefit of intelligence gleaned by tapping into Union lines - to discover the enemy's plans. NSA isn't wiretapping massive numbers of Americans' private conversations. It is listening in only to conversations in which at least one party - and many times both - are outside the United States and have been identified as connected somehow to al-Qaeda....the program is carefully limited to that, and excludes all else. What NSA is doing, under presidential order, is gathering intelligence by listening to al-Qaeda communications between and among its commanders and operators overseas as well as those people in the United States who talk to them.

Nor does the NSA program run afoul of FISA - which itself is the unconstitutional power grab of the Legislative Branch, if any power grab is truly going on:

The NSA operation is not a violation of the Foreign Intelligence Surveillance Act because the President, as the courts have held, has the power to order warrantless surveillance of this type - outside of FISA - to gather intelligence. FISA is used, according to the Justice Department officials, whenever both sides to a conversation are in the United States.

FISA is an act of Congress. Because the President's authority to order this surveillance is granted by the Constitution, an act of Congress cannot limit it. FISA, moreover, is unsuitable to combat terrorists because its requirement to demonstrate probable cause cannot often be met. The NSA program is not directed at gathering evidence admissible in a court of law. It's directed at capturing, killing, or disrupting terrorists. As Attorney General Gonzales will testify today, "Congress and the American people are interested in two fundamental questions: is this program necessary and is it lawful? The answer to both questions is yes." FISA is a peacetime tool. We are at war. [emphases added]

This is pretty cut & dried. The NSA program is legal and constitutional, and yet the White House has made every effort above & beyond the call to toe the letter and spirit of the law. And still those 535 mini-commanders-in-chief seek to put themselves above the law at the President's expense in the middle of a global conflict. Makes you wonder how any self-styled critic can possibly question the Bushies' eschewing of FISA update legislation when Capitol Hill, as we have seen time and again over the past few years, is a leak field of geyserous proportions.

As NRO reported Tuesday, Judiciary Committee Dems (and the chairman) tried to conceal their seditions and/or stupidity and/or lust for Executive power beneath a legalistic cloak of forcing the square NSA peg into the round FISA hole (Click here to see where that idea would lead). The end result....

veer[ed]....into territory having nothing to do with the NSA program [and] into questions about operational details that Gonzales could not disclose without compromising the program's effectiveness.

Or, rather, compromising the program's effectiveness any more than its traitorous leaking has already. Big Time certainly was having none of it:

[Vice President Dick Cheney] also expressed little interest in working with Congress to settle "legal disputes."

"We believe that we have all the legal authority we need," Cheney said in an interview on PBS' NewsHour With Jim Lehrer.

Asked about calls from the day before from both Democratic and some Republican members of the Senate Judiciary Committee to work with Congress to sort out differences, Cheney said, "Well, I don't think it would necessarily be in the interests of the country especially if we get into a situation where the legislative process leads to the disclosure of sensitive operational matters with respect to this program."...

"You can't take 535 members of Congress and tell them everything and protect the nation's secrets."

Damn straight. Or, put another way, the "dispute" here is not legal, but political, just as, as I've long maintained, the Democrats are fighting an entirely different "war" from the rest of the country. One in which, if they win, the real war - against Islamic Fundamentalism - will be lost.

It was perhaps in tacit recognition of how big a political loser this issue is for them that some Democrats beat a quiet but hasty retreat as the week wore on, moving from impeaching Bush to defaming him as a real-life "Big Brother" to terminating the NSA program without explicitly saying so by crushing it beneath FISA's heel to what the Bushies finally agreed to: expanding the classified briefings the White House has been providing congressional leaders for over four years to include the full Intelligence Committees of both houses.

For the Administration this is a "What the hell" solution; seeing as how it was almost certainly Senate Intelligence Committee Vice Chairman Jay Rockefeller (D-WV) that leaked the NSA terrorist surveillance operation to the New York Times anyway, it's not as though the previous briefings scope wasn't compromised anyway. This way they're still classified, and the modest expansion of the loop may already be paying dividends (h/t CQ):

At least one Democrat left saying he had a better understanding of legal and operational aspects of the anti-terrorist surveillance program. But he said he still had a number of questions.

"It's a different program than I was beginning to let myself believe," said Alabama Representative Bud Cramer, the senior Democrat on the Intelligence Committee's oversight subcommittee.

I believe the colloquial expression is, "Cutting through the crap." Something that the President himself did eloquently the other day with his disclosure of how anti-terrorist signals intelligence helped thwart a 9/11-like plot to attack Los Angeles in early 2002. And if congressional legislation seeking to "impose oversight and regulation" on foreign intelligence gathering gets carried away after all (as you can pretty much count on), Dubya will wield his veto pen like the sword of Damocles, and the American people will be with him.

In a similar vein, the four renegade GOP senators who gave "bipartisan" cover to the Democrats attempt to kill the Patriot Act have come home on some cosmetic legislative alterations to the critical domestic anti-terror tool. Now if the Democrats try to filibuster Patriot to death and leave the American homeland wide open to terrorist invasion, the bane will be on their own dwindling heads.

All in all, it sounds like a relatively sunny epilogue to such a flash-in-the-pan tempest-in-a-teapot (sorry, I had some hyphens left over and wanted to use them up). So it fell to the Wall Street Journal's Daniel Henninger to provide the dark cloud:

Let's start with the one thing we know for sure about the Bush Administration's program to listen to al Qaeda's phone calls into and out of the United States: It's dead.

After all the publicity of the past two weeks, does anyone think that the boys working on plans for Boston Harbor, the Golden Gate Bridge or Chicago's Loop are still chatting by phone? If the purpose of the public exposure was to pull the plug on the pre-emptive surveillance program, mission accomplished. Be safe, Times Square.

At the least, al Qaeda's operatives in Yemen, Iraq, Pakistan, Hamburg and the U.S. will hold off phoning in the next mass-murder plan until the U.S. Senate finishes deliberating Arlen Specter's proposal to legislatively order up an opinion from the judges on the Foreign Intelligence Surveillance Act court, est. 1978, as to whether the antiterrorist wiretap program violates the law that created their jobs.

What a happy thought. And don't forget the sudden rush on disposable (and thus untraceable) cell phones last month. If Henninger is correct, these Senate hearings are more forensic than proactive, Senator Rockefeller and the NYT already having delivered the killing blow to a prime defense against enemy attack. And yet Dems are still attacking Bush for not having gotten bin Laden! Which is why you have to love this Henninger line:

Historically, the proper path for working out these national security disputes hasn't been Senator Specter's preposterous appeal to let some judge design the nation's antiterror policy but rather through informal political negotiation between the executive branch and Congress. That only works, though, if the presidency has someone who will negotiate in good faith. Who's that? Hillary Clinton, already on the campaign trail in front of the UAW Wednesday, contributed: "You cannot explain to me why we have not captured or killed the tallest man in Afghanistan."

Well for starters, he's probably not making phone calls.

Ouch.

But if the snarky zinger doesn't float your boat and you prefer the dramatic polemic instead, we will close with former Louisiana Congressman (and briefly House Speaker) Robert Livingston's retort to an invitation of a former House colleague to sign a statement criticizing President Bush for wielding too much power in the war on terrorism:

... I have always considered you as a good friend, and I continue to do so. But since you raised it, I must tell you … I am emphatically on the other side of this issue.

The President of the United States is the Commander in Chief of our Armed Forces. He is Constitutionally obligated to do everything possible in time of war to safeguard the American People. This tempest in a teapot about treatment of cowardly un-uniformed mass murderers and terror mongers, as well as restriction of his ability to monitor conversations of potential terrorists is in my view asinine, and I will have nothing to do with any effort that might be used to undermine his ability to keep us free from terrorism.

Indeed, we are at war with a most formidable and intractable enemy. He is insidious, cowardly, and bent on the destruction of all civilized society. Innocent men, women and children are cannon fodder in his eyes, and efforts such as the one you are sponsoring will be unappreciated by practitioners of his cause. This effort would have looked insane in Lincoln’s day, and he was far more intrusive in his practice than anything that has been envisioned today. Frankly, some Members of Congress and self-appointed leakers in the Executive Branch have put this country in grave danger with this very discussion. I have seen no evidence at all that American citizens have had their Constitutional 4th Amendment rights infringed upon (as they were in the Kennedy, Johnson, and Nixon eras). Until such evidence is shown, I shall do nothing to keep this President from protecting American citizens from harm’s way.

Would that Republicans still in Congress would stand up and echo these sentiments in one full-throated roar. It would be refreshing indeed to witness an Elephant stampede in a direction other than needless retreat.