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| Round Up the Usual Suspects: NSA, Security, & Liberty |
| 2006-05-18 |
| By Ronald A. Cass The National Security Agency's surveillance program is news again. News reports based on anonymous sources - always a good cover for the media - fed stories this past week that the NSA demanded and got tens of millions of domestic phone call logs from Verizon, BellSouth, and AT&T in the wake of September 11, 2001. The major media, beginning with USA Today, ran with the leaked information, apparently deeming anything that sounds negative for the Bush Administration or for major corporations as sufficiently credible on its face. Already, Verizon, BellSouth, and AT&T have denied the reports. The firms categorically deny having provided the phone logs that the news media said the companies gave NSA. Indeed, the phone companies said as well that NSA never asked for the information. Other phone companies reportedly said the same thing - meaning that this story should be filed under the headline "didn't ask, didn't tell." There are, of course, columnists who have the same story line ready to go each day: the headline is "Bush Administration Responsible for Disaster," though the details change day-to-day. If, as now seems likely, the mass release of phone records is one of those really good news stories that has the minor defect of being a total fabrication, that may change some of the details in future stories about the NSA program. But it won't keep a swarm of anti-Bush columnists from slamming the administration for having (supposedly) conducted this large-scale surveillance operation. Just as it didn't keep self-appointed privacy watchdogs from filing suit almost immediately asking for $200 billion in damages from the companies named in the news stories. The NSA stories have generated great interest and the usual hyperbolic commentary. As with the Texas National Guard story that brought an all-too-eager Dan Rather's career to a close, some members of the publishing and pundit classes have staked out territory well ahead of the support that is at hand. This has occasioned the predictable calls for congressional hearings, prosecutorial investigations, and even impeachment. The familiar voices are once again claiming that in authorizing the NSA program, President Bush has committed a crime. He hasn't. Not even close. The legal issues aren't simple, and the practical issues aren't simple. But one issue is: those who want to portray the NSA surveillance program as the far-fetched creation of a megalomaniacal president abusing his power and flouting the American constitution have to develop some new material. The starting point for any perspective on this has to be 9/11. More Americans were killed in a single day from one event than at any time since the Civil War battle of Antietam. We were shocked by the attack's occurrence, by its callous brutality, and by the sudden expectation that something very much like this could happen again and again. We demanded that our government find out who was to blame, discover how the signals had eluded us, and identify future threats before thousands more were killed. Talk-radio stations, political commentaries, and public personalities of every stripe demanded that we improve our ability to "connect the dots" more swiftly and accurately. Our officials quickly determined that the al Qaeda organization was to blame and almost as quickly sought - and got - congressional approval for sweeping changes to our laws that would make it easier for government to find, monitor, challenge, capture, and detain al Qaeda and other terror suspects. Few people were in a mood to ask questions. Government officials weren't precise in framing what they were asking for and congressmen and -women weren't precise in deciding what they were authorizing. Congress expressly authorized the President to use "all necessary and appropriate military force against those nations, organizations, or persons he determines" were involved in 9/11. All force necessary and proper to make us secure. Not all force consistent with prior legislation. Not all force consistent with scruples about individuals' privacy concerns. Military force historically has included intelligence-gathering as well as front-line combat. What did our representatives intend with respect to that? It's doubtful that anyone could have said at the time. They knew we'd been attacked and might be attacked again and didn't want to answer to the American people if they failed to authorize whatever it took to prevent that. That's what President Bush promised Americans he would do: whatever it takes. When The New York Times revealed NSA's electronic surveillance of international communications (including communications into or out of the US) aimed at suspected al Qaeda operations last December - four years, two military campaigns, and a few Administration problems later - the civil libertarians in and out of Congress suddenly remembered what this use of force resolution meant. They said it meant only that the President could pursue al Qaeda operatives in Afghanistan, not that he could authorize information gathering that would include surveillance of their conversations, especially not if one conversant were in America. They recalled specifically that the extensive restrictions on electronic surveillance put in place in the 1970s, under the Foreign Intelligence Surveillance Act, were to be maintained fully in the new regime. The sudden recollections went hand in hand with assertions that there was no other legal support for the NSA's action, not in statute, in the Commander-in-Chief clause of the Constitution, or in Article II's clause vesting the Executive Authority in the President. While not all the President's men sprang to his defense, some advocates of the NSA program pointed out that more recent legislation trumps earlier legislation, that the Commander-in-Chief clause long has been thought to authorize pursuit of intelligence against enemies who threaten to use force against us, and that the vesting clause of Article II traditionally has been interpreted as giving broad latitude for presidential authority over foreign and military affairs, even in the face of contrary congressional command. They marshaled quotations from Presidents, presidential advisers, and judges - stretching back from the Clinton administration to the time of the Framing - to support that construction of the law. Neither side has a hands down case. Presidential detractors probably have at least as good a case, and possibly a better one, on the issue of statutory authority. The far more general instruction in the authorization for use of military force can plausibly be read as supplanting FISA, and it may make practical sense to use a very different approach than FISA demands. But there is very little clear evidence of a design to replace FISA in the authorization for use of force. The President's defenders, on the other hand, have the better constitutional argument. The argument based on the vesting clause is especially strong. That clause, like the parallel judicial vesting clause, conveys some measure of executive power, and executive power long has been understood to include some independent element of foreign affairs power. Mostly, however, the President's supporters have right the essential insight that, far from using the law to advance personal ends or pursue political vendettas, this President is engaged in a struggle that is critical to the future of our nation. He is fighting a threat that is real, an enemy who has struck Americans repeatedly and whose attacks can have devastating consequences if allowed to proceed undetected and undeterred. The proper weight to be given to privacy concerns is a matter of debate, just as it should have been when President John Kennedy and his Attorney General, Robert Kennedy, authorized warrantless wiretaps directed at Dr. Martin Luther King, Jr. The weight to be given to personal liberty relative to national security can be argued, as it should have been when President Franklin Roosevelt and Governor Earl Warren backed internment of Japanese-Americans during World War II. But while critics can question President Bush's weighing of policy concerns and the legal grounds for his positions, his commitment to our security - and its central role in shaping the NSA surveillance program - should be beyond question. If liberty is a too-frequent casualty in war, truth is a too-frequent casualty of political reporting, especially in the Blame-It-on-Bush era. Calls to round up the usual suspects should be seen for what they are - better suited for keeping our interest than for keeping us secure. |
| Posted by:ryuge |
| #1 "The major media, beginning with USA Today, ran with the leaked information...Verizon, BellSouth, and AT&T have denied the reports. The firms categorically deny having provided the phone logs that the news media said the companies gave NSA." I smell a set-up but its great!If only a handful were even briefed on this program, the leaker will be easily identified. I wonder if this had anything to do with Sen. Rockefeller's timely back surgery? Sen. Levin is much less contentious in the hearing for Gen Hayden. |
| Posted by: Danielle 2006-05-18 12:44 |