Gonzales and Hayden answered questions about reports that the National Security Agency, which Hayden directed from 1999 to 2005, was eavesdropping on Americans via a special program in violation of the Foreign Intelligence Surveillance Act (FISA). The implications for privacyand our system of checks and balancesare immense.
As long as he read from his prepared statement, Attorney General Gonzales did just fine with the press. He conceded that FISA requires a court order to authorize the surveillance the president ordered NSA to undertake, and then hammered home the administrations legal analysis: the twin argument that Congress post-9/11 authorization of force and the presidents power as commander in chief trump the legal constraints of FISA.
When the reporters questions began, though, Gonzales faltered and twice spilled the beans. Asked why the administration decided to flout rather than amend FISA, choosing instead a backdoor approach, Gonzales said:
So they went ahead and did it anyway.
Gen. Haydens remarks were equally intriguing: He conceded that the special program authorized by the president was more aggressive than would be traditionally available under FISA, but stressed repeatedly that the new program deals only with international calls for short periods of time. In other words, U.S. citizens are monitored only sometimesand just a little, so we are dealing with tiny incompatibilities with the FISA law...and, besides, the president has said he has the authority anyway. Hayden and Gonzales both stressed the need for speed and agility.
The most cynical and, I fear, the most direct answer can be gleaned from Vice President Cheneys bizarre assertionsupported, no doubt, by a stack of in-house legal opinion, that in war time the president needs to have his powers unimpaired. As noted above, on Dec. 19, Gonzalez invoked the inherent authority under the Constitution of the commander in chief, as well as the equally ludicrous claim that Congress authorization of war after 9/11 trumps FISAa claim that even The Washington Post has termed impossible to believe.
These extreme views are the same ones that underpin the presidents decision to flout international and U.S. criminal law by approving practices like torture, until now almost universally rejected by civilized societies. The answer may be simpleimperial hubris, one might call it. And ifas seems to be the casesenior leaders like Colin Powell acquiesce in torture and Gen. Mike Hayden in illegal eavesdropping, shame on them. This would merely show, once again, that absolute power truly does corrupt absolutelyindeed, that even closeness to absolute power can.
A more nuanced explanation may lie in the physics of the challenges faced by NSA and the availability of sophisticated technologies not foreseen when the FISA law was passed in 1978. At the press conference, the attorney general issued a pointed reminder that there have been tremendous advances in technology since 1978. Recent press reports on the number of communications being monitored by NSA suggest that the number may be so large as to be technically or practically impossible to take to the attorney general for approval as individual FISA emergencies. Consistently high numbers of monitored communications could have trouble passing muster at the FISA court as emergencies, for the exceptions would quickly swallow the rule.
A recent article by Charles Freid in the Boston Globe suggests that communications are now selected for monitoring based on highly sophisticated algorithm programs and that at the first, broadest stages of the scan, no human being is involvedonly computers. This, and the high numbers involved, would make it impossible to obtain emergency AG approval on an individual basis, as required by FISA.
As Gonzales has indicated, initial soundings were taken with Congress and the prognosis was deemed poor for obtaining NSA vacuum-cleaner-type authority to suck up communicationsincluding those to or from Americansfrom wires and the ether. But is that not what government lawyers are for; i.e., to devise ways to make such things legal and possible at the same time? There is no sign of any serious effort on the administrations part toward that end. Rather, administration officials preferred to fall back on the anyway rationalization; i.e., the notion pushed by top administration lawyers that the president has the power to authorize eavesdropping anyway.
The vast quantity of communications reportedly intercepted by NSA under this special program (New York Times reporter James Risen says roughly 500 people in the U.S. every day over the past three or four years) makes suspect the presidents claim that all of the monitored communications have some link to Al Qaeda. If he is telling the truth, we are indeed in serious trouble; fortunately, his record with such statements does not inspire credulity.
Another concern is that, among the groups of American citizens most likely to be sucked up by the NSAs vacuum cleanerbecause of the nature of their work and their international calls/contactsare members of Congress and journalists. A key question that raises its ugly head is this: If hundreds of calls and e-mails involving Americans are being intercepted each and every day, and juicy tidbits are learned about, say, prominent officials or other persons, there will be an almost irresistible temptation to make use of this information. Former FBI special agent Coleen Rowley, who for many years monitored court-authorized electronic surveillances and wiretaps relating to organized criminal and drug conspiracy groups, recently underscored how much one can learn about someone by listening in on his/her private communications. She reminds us that the blackmail potential is clear.
And the federal government has a long history of using domestic intelligence for just such purposes. J. Edgar Hoover, the first director of the FBI, was adept at using information so acquired not only to pursue those he suspected of Communist or un-American activities, but also to maintain his power and influence for 47 years over presidents, members of Congress and other power brokers. The FBIs COINTELPRO activitys use of such information to harass and discredit Dr. Martin Luther King, Jr. is a particularly glaring example of such abuse. And Nixons access to such information gave him the inside track on how to neutralize those on his long enemies list.