White House surrender on NSA spying program may not mean what you think it does

Wednesday, January 17, 2007 at 05:43 PM

So the fearless leader and his personal Gonzo at the Justice Department have backed down on the NSA warrantless spying program, which will now operate with oversight by the FISA court.

Sounds like a victory for civil rights, and it probably is to some degree.  But should we take this "surrender" by the White House at face value?

I'm not so sure.  The Guardian article linked above flatly says that:

The shift in oversight means that all wiretaps or other eavesdropping tools by the federal government must be approved by court order.

But back up a minute.  The letter from Gonzalez to to Senators Leahy and Specter, in which he announces that the NSA warrantless surveillance program will now be conducted pursuant to guidelines promulgated by the FISA court, explicitly says:

...any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court.

"..that was occurring as part of the Terrorist Surveillance Program..."  Hmmm.  So if there was warrantless spying occurring under some other program, then this announcement doesn't cover it.

Are there domestic warrantless spying programs other than this one?  Well Gonzalez certainly provided reason to suspect that there might be.  Some time ago, Gonzalez felt compelled to "clarify" his testimony before Congress on that very point.  He initially said the NSA warrantless spying program that was the subject of the hearing was authorized by President Bush, then added "and that is all that he has authorized." BUT...he felt compelled to clarify that with a letter stating that "I was confining my remarks to the Terrorist Surveillance Program as described by the President" and that he "did not and could not address . . . any other classified intelligence activities."

When slippery words and qualifications emanate from people this dedicated to semantic dodges, it behooves everyone to pay attention.

Which brings me to one last point on this:  don't forget the recent controversy over the slight change in wording in an Army manual governing intelligence activities.

Deep into an updated Army manual, the deletion of 10 words has left some national-security experts wondering whether government lawyers are again asserting the executive branch's right to wiretap Americans without court warrants.

The manual, described by the Army as a "major revision" to intelligence-gathering guidelines, addresses policies and procedures for wiretapping Americans, among other issues.

The original guidelines, from 1984, said the Army could seek to wiretap people inside the United States on an emergency basis by going to the secret court set up by the Foreign Intelligence Surveillance Act (FISA), or by obtaining certification from the attorney general "issued under the authority of section 102(a) of the Act."

That last phrase is missing from the latest manual, which says simply that the Army can seek emergency wiretapping authority pursuant to an order issued by the FISA court "or upon attorney general authorization."

So has the blatant violation of the Constitution and FISA been corrected?  Maybe, maybe not.  The White House probably feels pretty good about having once again deflected attention from a very iffy and dangerous program.  They have greatly lowered the incentive for Congress to treat investigation of the NSA program as a high priority, or at least diluted public support for that investigative effort.  And I'm sure that Bush/Gonzo would rather argue about whether there are other warrantless spying programs, and whether the Congress has a right to know about them, than discuss the details, origins, and uses of the NSA program.

I do not trust these twisters of words and logic.  Senator Leahy, you really, really need to get a statement from Gonzo, under oath, on what other programs there are that do/may violate the Constitution or other oversight statutes.

And none of this even touches on the fact that the White House's surrender on the NSA program pretty clearly shows they were lying about their twin claims that: (1) the program was absolutely crucial to national security, and (2) it had to operate outside FISA.  If those claims were true, then the White House's capitulation means that they are knowingly endangering national security, right?

If you want to see Tony Snow do the cha-cha around that and other obvious contradictions, check out this excerpt from today's press conference:

Q Tony, what is the thinking behind the Justice Department's decision to put the warrantless wiretapping program under the authority of FISA?

MR. SNOW: What's going on actually is the National Security Agency conducted the Terrorist Surveillance Program. And in 2005, long before the existence of this program was known publicly, there was the thought that perhaps one ought to see if it is possible for the President to continue to exercise his constitutional ability to protect the American people and to place it under the FISA statute.

Now, let's back up a little bit, September 11, 2001, we have the attack on the United States. Congress grants authorizing language that says to the President use "any necessary means." That would include trying to figure out if people are on our soil trying to kill us. Pursuant to that authority, the President authorizes a surveillance program.

But what's happened is that the FISA Court, itself, also had not been presented with a situation quite like this. The FISA Court has published the rules under which such activities may be conducted. I think it's a way of clarifying, I think to the satisfaction of a lot of people, how these things ought to proceed with the engagement and supervision of the FISC -- the Foreign Intelligence Surveillance Court. And what we've done in the last week is we've been notifying, first the Intelligence Committees at the end of last week, and then the Judiciary Committee today.

What happens is that the program pretty much continues -- the program continues. And the Foreign Intelligence Surveillance Court has put together its guidelines and its rules, and those have met administration concerns about speed and agility when it comes to responding to bits of intelligence where you may be able to save American lives.

It's also one that means that this is not -- this is surveillance in which -- well, I'll read you from part of the letter that went to Senators Leahy and Specter today. It says, "Where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associate terrorist organization." That's one of the most important things. One person on American soil, one person on foreign soil. One probable cause to be suspected as a member of al Qaeda.

So we are satisfied not only that it meets the conditions of national security, but in this case, also, I think answers -- even though we've been doing this long before the criticisms arose, has the ancillary benefit of being able to deal with political objections a number of people have been raising, you need to do it within the Foreign Intelligence Surveillance Court. And now I think everything is done under FISA. The President will not reauthorize the present program because the new rules will serve as guideposts.

Q Well, the President has always argued that -- I mean, he has the ability, he has the authority not to --

MR. SNOW: Yes, and he still believes that.

Q -- not to use FISA to get authority, because it was too cumbersome or it took too much time to get information about a possible terrorist attack. So what has changed? What has happened since then?

MR. SNOW: We can't tell you -- what has been going on is there's been a lot of work over a two-year period to try to address those speed and agility questions. And to the satisfaction of the head of the National Security Agency and the Director of National Intelligence, as well as the President and the Justice Department, these new rules effectively address those concerns.

Q Could I follow up on that, Tony? So if it took two years of work to address those speed and agility questions, why couldn't that work have been done initially, when this program was first created?

MR. SNOW: Look, at this particular point -- it's a good question. The fact is, it's been going on for the last two years.

Q Tony -- and also to follow up on that -- so you said the President will not reauthorize the present program?

MR. SNOW: Right.

Q In other words, we now have a new program called --

MR. SNOW: No, you have the same program it operates under, but it's really a matter of your legal authority prior to that. It was presidential order. Now, in this case, the program continues, but it continues under the rules that have been laid out by the court.

Q So it's not -- it is not operating under presidential order anymore? It's operating under --

MR. SNOW: Well, as this order expires, I don't exactly how the handoff works, but he will not reauthorize it, so that there will be no doubt. I don't know at what point this takes effect. My guess is it took effect some time last week, but I'm not sure.

Q And as you know, there have been a number of efforts on Capitol Hill, and notably Senator Specter has been pushing for legislation -- is it your view that these new rules make those efforts moot, there's no need for legislation now?

MR. SNOW: I'd address that to Senator Specter. He is one of the people who is being briefed on this today.

Q But I'm asking you what the President thinks? Does he think there's no more need for legislation?

MR. SNOW: The President -- again, let's -- again, this measure began, Sheryl, long before there was a political controversy. And this is the culmination of a lot of hard work over a couple of years. I think the question, rather than what does the President think Senator Specter is going to do, I think it's probably a lot easier, rather than trying to bounce the question off the President's brain, just ask Senator Specter.

Q No, Tony, the question isn't what does the President think Senator Specter is going to do. The President came out in support of Senator Specter's bill, so the question is, does the President now believe that that bill is no longer necessary?

MR. SNOW: Well, we will see, but we think it meets the concerns of members of Congress, which is the point I tried to make earlier.

Q On the FISA move, rolling the terrorist surveillance program under the FISA Court. You're suggesting that this is a voluntary move by the administration, not an action that's tied to federal court action, or --

MR. SNOW: No, no, no, no, no. No. No. As a matter of fact, it may be interesting to see how it plays out in federal courts, but no, this is not a response -- again, Bret, this has been going on for two years.

Q But if it has been going on for two years, why wouldn't you say that during the hubbub when we spent a week dealing with this, instead --

MR. SNOW: Because the Foreign Intelligence Surveillance Court does not like to have its business discussed in public, and only because of the public revelation of the terrorist surveillance program are we announcing this at this juncture. Typically, they are properly very protective of things that go before them. And as a result, we don't talk about them.

And, yes, it's an example of a case where we take hits for doing what's right, rather than getting credit for what seems to be expedient.

Q But what's different here with the NSA program now? I mean, why are you doing it now? What's changed that this is now acceptable --

MR. SNOW: The court has put -- the court has drafted regulations for the program. I mean, this -- the court now has issued an order that governs these sorts of activities, so it's really timed to what the court has decided and promulgated.

Q And it has nothing to do with acknowledging any action on the Hill or --

MR. SNOW: No, I don't think the Foreign Intelligence Surveillance Court sits around and goes --

Q But you -- but you saying, okay, they're going to have oversight here --

MR. SNOW: No, this is a result of the order having been completed by the court.

Q Does that mean you don't have to get warrants, then? Or you do have to get warrants?

MR. SNOW: No, you look at the Foreign Intelligence Surveillance Act -- the court now will review all such activities.

Q Just back on FISA, I mean, obviously, there are going to be some people who look at the timing of this, and Attorney General Alberto Gonzales is supposed to go before the Senate Judiciary tomorrow. I mean, people are going to see this as, like, look, politically motivated --

MR. SNOW: But, again --

Q -- that he would take a hit tomorrow, that he would be beaten up over this, and he announces today --

MR. SNOW: I don't think so. I don't think so. I don't think so. Number one, notifications began late last week. Number two, it's the FISA Court, which is the Foreign Intelligence Surveillance Court, which has done -- what you're doing is you're accusing that court of engaging in political activity to, what, bail out the Bush administration? I don't think so. They look at their business as being national security, and they are very professional, and also -- they are determined to protect what they see are their responsibilities under statute. So I think it's a real stretch to try to say that that court somehow is engaged in a politically timed activity.

I don't think -- what I think will probably happen is that members, probably as much in closed session as open session, will probably wish to talk about what we have -- the readout we've gotten, at least out of the Intelligence Committees, is that members are very happy with what they've seen. It could be the case that the Attorney General will go up there, people will say, wow, that's great. Now, they may say, why didn't you do it before? They may ask many of the questions -- the process questions that you're interested in. But it also may be the case that they're going to say, we're glad this happened.

Q Why the timing of the announcement today, though, before he goes before the Senate Judiciary? It was made earlier, why not announce it earlier?

MR. SNOW: You mean why didn't we do it Friday, instead of today? I don't know. You try to do due notification. We know that members of the Intelligence Committees have been notified, and this is the time for notifying members of the Judiciary Committees.