Decision ‘08

The Quick and Dirty Guide to the NSA Hearing

Today, Pennsylvania Senator Arlen Specter will convene the Judiciary Hearing on Wartime Executive Power and NSA’s Surveillance Authority. The guest at this roast will be Attorney General Alberto Gonzales. We know a lot about the day’s events already: Senator Specter has supplied us with 15 questions, and the Democratic committee members with six ‘questions’ of their own (more on that in a moment). We also know roughly the message Gonzales will try to convey, both from recent speeches and a preview that has been published in TIME.

Here, then, is a little Q & A that I hope both the uninitiated and the obsessed may find helpful.

Q: What’s this all about, then?

A: On the 16th of December, the New York Times released a story, apparently under pressure of being scooped by the imminent release of the book “State Of War“, that revealed the existence of a surveillance program conducted by the National Security Agency, under the authorization of President Bush, that captured communications where one end of the call was domestic.

Q: So?

A: So, that’s a potentially very big deal, because people are a little leary of domestic surveillance by the government, particularly in the post-Nixon era.

Q: So we’re talking wiretapping Americans?

A: That’s a good question, and the answer isn’t straightforward. Gonzales says, essentially, yes: the Administration has authorized a program limited in scope that targets communications where one end is a known or suspected terrorist. Others, myself included, have argued that data-mining or packet-sniffing is involved. Adding to the confusion, there are actually two post-9/11 NSA surveillance programs that are often jumbled together, whether intentionally or from ignorance: the President’s, and a program authorized by Michael Hayden when he was at the NSA.

Q: So why the hearings? Isn’t Specter a Republican? What does he hope to accomplish?

A: Whoa, whoa, settle down, one at time. Yes, Specter is a Republican, though one who hasn’t always stayed on the reservation. On a cynical level, Specter could be trying to control the debate, knowing that some sort of Congressional response is inevitable.

The real reason Specter is holding this hearing, though, is territorial; as a Senator, he resents the Administration for bypassing the FISA (Foreign Intelligence Surveillance Act) court that Congress had intended to supervise operations of this sort. He also has a vested interest in countering the Administration’s expansive view of executive power.

Q: So, is the President’s program legal? Will the hearing settle that?

A: Oh, my naive young friend - does a hearing settle anything? The President claims he has two areas of authority that he relied on: one, his inherent power to protect the public during a time of war, and two, the Authorization to Use Military Force passed by Congress in the immediate aftermath of 9/11.

Most congressional leaders, however, say they did not intend to give the President this authorization, and if they had, it would have been explicit. Specter, on their behalf, will also question the AG on why the administration didn’t seek to have the authorization included in the Patriot Act, when the Congress was at its most compliant.

Q: So why didn’t the President go to the FISA court, or amend the Patriot Act?

A: What am I, a mind-reader?

Q: What will the Democrats use this hearing for?

A: Unfortunately, the Democrats will do what they do best, from all indications. Russ Feingold intends to call the AG a liar, and judging by the six ‘questions’ put forward by the Democrats, they intend to make this hearing a referendum on the ‘imperial presidency’ of George W. Bush. I say that because their questions are not questions at all, but rather requests for massive amounts of documentation more in line with discovery during a criminal trial than any good faith effort at contributing anything of value to the debate.

Q: Bottom line, then: what will come out of this hearing?

A: Worst case, probably nothing more than a few bad headlines for the Administration. Best case, at least from Specter’s perspective, would be some sort of commitment from the Administration to pull back a bit and submit to FISA or some other more active oversight.

I’ll be keeping an eye out, obviously, for any juicy developments…

UPDATE 8:43 a.m.: Lorie Byrd (thanks for the link, Lorie!) is hoping the Democrats rise above the performance of Patrick Leahy this weekend; also, Rick Moran has another (excellent) preview up at Right Wing Nut House…

29 Responses to “The Quick and Dirty Guide to the NSA Hearing”

1 Clint Says:
February 6th, 2006 at 1:13 am
“Specter, on their behalf, will also question the AG on why the administration didn’t seek to have the authorization included in the Patriot Act, when the Congress was at its most compliant.”

Best answer you won’t hear:

“Frankly, Senator, we suspected that some members of this august body could not be trusted not to leak information about such a program to the New York Times, and thereby to Al Qaida. I can’t imagine why we might have thought that.”
2 ordi Says:
February 6th, 2006 at 2:27 am
It sounds like the AG has a few surprises for the Senators!

GONZALES COMES OUT
After what is expected to be Attorney General Alberto Gonzales’s coming out party on Monday, look for the media focus to turn to the House and Senate as the primary possible sources for the leaked NSA overseas monitoring program.

SNIP

According to other DOJ and FBI sources, the investigation into the leak has been focused on Capitol Hill, where a number of interviews have already taken place. In fact, the FBI is still considering asking the members of the Senate Intelligence Committee and its staff to sign blanket waivers and releases that would allow a full investigation and disclosure of their interactions with reporters and others who might have used the NSA’s activities for political purposes.

“There is no question that people are going to be looking at us,” says a Senate Democratic Party leadership aide. “Never mind that it might be a Republican with a conscience who leaked it. People are going to assume that it was a Democratic staffer who did it for his or her boss, or that it was the Senator himself. The fact that in this case people assume that it was a Democrat shows how far we’ve slipped in the minds of the American public. That’s our problem, and we can’t really blame the Republicans.”

http://www.spectator.org/dsp_article.asp?art_id=9373
3 Right Wing Nut House Says:
February 6th, 2006 at 10:08 am
LET THE GAMES BEGIN: A PREVIEW OF THE NSA HEARINGS

Lights! Camera! Meltdown!

The hearings on domestic spying that will get underway today had the potential to actually answer some very fundamental questions about executive power in wartime and the limits that should be placed on government spying. T…
4 Penelope Says:
February 6th, 2006 at 10:17 am
so here’s my question, who’s for it, and who’s against it?
5 Mark Says:
February 6th, 2006 at 10:32 am
Penelope, if by ‘it’ you mean the NSA program, the interesting thing is that hardly anyone is arguing for the program to stop; it appears that, contrary to recent news accounts, the Congress on both sides of the aisle seem to accept the utility of the program…it’s the manner in which it was implemented, and the questionable legality, that is the source of all the controversy…
6 Clint Says:
February 6th, 2006 at 10:38 am
Ah, yes. The Democratic platform: I support every one of the President’s goals, but he’s too stupid or evil to accomplish them.
7 Iowa Voice Says:
February 6th, 2006 at 10:44 am
NSA Hearings

All times are CST:

8:47 a.m.: Opening statement by the Chairman of the Judiciary Comm. (Specter), followed by several minutes of Democrats demanding that Gonzalez be sworn in. Ending with Specter finally saying, in effect, “Look, we’re not going …
8 eLarson Says:
February 6th, 2006 at 10:46 am
So we’re talking wiretapping Americans?

I think there’s a matter of definitions here. It could have been a US citizen, someone with a green card, somebody here temporarily on a visa of some sort, or somebody here illegally (snuck in, overstayed their visa, or whatever).

The statute in question covers the first two, I believe as “US persons”, but not the rest.

Do we even know who was on the US-side of the conversations?

eL
9 Mark Says:
February 6th, 2006 at 10:50 am
eLarson, quite true, all of the above could be on the U.S. side of the communication…but then, the controversy is over the Americans (we seem to be fine as a society, overall, with wiretapping non-U.S. citizens)…
10 Penelope Says:
February 6th, 2006 at 11:14 am
i have mixed feelings. on one hand, i have nothing to hide, and as some of you know, i am married to a muslim that comes from jordan, and he and i have he is of the same mindset, he has nothing to hide. what’s the worst the government will learn, that my mother-in-law wants me to bring her some candy when i go to visit, baby ruth’s please.

but on the other hand,,,I had a boyfriend that had downloaded this program to my computer when he was supposed to be cleaning out virus’. i had nothing to hide as he pointed out to me, and that’s when i pointed out to him that the door was to his left.
11 peter Says:
February 6th, 2006 at 12:57 pm
“Q: So why didn’t the President go to the FISA court, or amend the Patriot Act?

A: What am I, a mind-reader?”

FISA approved ~ 99% of the warrants which were requested. The administration could obviously get a warrant whenever there was evidence to suggest that someone was an Al Qaeda suspect. The most logical answer to the question is: instances where the government lacked the evidence to get a warrant.
12 Stop The ACLU Says:
February 6th, 2006 at 1:36 pm
ACLU Welcomes Senate Inquiry Into Warrantless NSA Spying Program With Full Page Propaganda

The ACLU are running this full page ad in conjunction with today’s Senate hearings over the NSA.

As the Senate Judiciary Committee met today to conduct the first official Congressional oversight hearing on the warrantless National Security Age…
13 Robert Says:
February 6th, 2006 at 2:10 pm
A warrant isn’t required when constitutional authority exists. Submitting to FISA would be a bad precedent and might bind future presidents to statutory law taking precedense over constitutional law.
14 Mark Says:
February 6th, 2006 at 2:19 pm
Yes, peter, but now we get back in the same ol’, same ol’ - why was the evidence to get a warrant lacking? Probably because of data-mining or packet-sniffing (Kevin Drum points to hints in the WaPo article that headers of communications are examined to begin with)…

It seems that any good faith effort to unwrap this program is bound to break up on the shores of limited information….
15 peter Says:
February 6th, 2006 at 2:33 pm
Could be, but you are making two assumptions here:

1) The warrantless wiretaps were only for data mining, and were not directed at specific individuals
2) The administration was only wiretapping those who it thought were connected to Al Qaeda, and not political opponents or others it wanted to wiretap

To be clear: I am not saying that the Bush administration wiretapped its opponents – since we don’t know who was wiretapped, we just don’t know, and I’m disinclined to take the administration’s word at face value. However, the purpose of FISA is not only to prevent impropriety, but also to prevent even the appearance of impropriety. Judicial review supports the notion that the wiretaps are aimed only at suspected terrorists – circumventing this process supports the notion (right or wrong) that they are used for less benign purposes.

Incidentally, there was an interesting piece in the Times today comparing the current NSA controversy with the Church Commission in the 1970’s, which led to FISA – striking parallels between the two –
16 Michael M. Says:
February 6th, 2006 at 2:46 pm
This case represents the most egregious lawbreaking by this corrupt administration yet. They are basically saying, “Yes, we know we broke the law by spying on Americans illegally. We are, however, above the law.” AG Gonzalez is spreading more misinformation at the hearings right now, unfortunately; and those “Al Queda suspects” they were illegally wiretapping and spying on were peace activists. This is very poorly done and is against the Fourth Amendment.
17 Mark Says:
February 6th, 2006 at 2:49 pm
You’re quite right that I am making those assumptions - you throw out the possibility Bush was spying on political opponents, based on - what - nothing? - then somewhat disavow it.

This is rather like the old trick, “Some may say…., but not me”…well, you just did, didn’t you?…

I’ll put it to you this way, peter…I never was even remotely a Bill Clinton fan, so I’m not a good source on this - but when Bill Clinton blew up that chemical factory right in the middle of the Lewinsky debacle, did you think he did it for real national security reasons, or to distract attention from the scandal?

Because if you believe he acted in good faith, shouldn’t you also give George W. Bush the same credit for elevating national security over personal pettiness?…
18 Mark Says:
February 6th, 2006 at 2:55 pm
Michael M., give me one - one! - piece of evidence that the Bush NSA program was used to spy on peace activists…and don’t give me some front group or phoney-baloney Counterpunch type junk…
19 peter Says:
February 6th, 2006 at 3:06 pm
I am suggesting the possibility that Bush was spying on political opponents because

a) it has happened before
b) you may disagree that it is the most logical reason why the administration did not seek warrants, but it certainly is a plausible explanation – otherwise, why not follow the law and get the warrants?

This may read to you like “when did you stop beating your wife.” I don’t think my skepticism is unwarranted – many people refused to believe that Nixon would spy on his enemies until Liddy’s group of burglars was caught. The fact that the administration refused to obtain warrants from a court which rubber stamps warrant request scertainly lends credence to this speculation.

As for “elevating national security over personal pettiness:” if I thought that ignoring the law and avoiding the FISA courts somehow elevated security above following the law, I would feel very differently. Thus far, neither the Bush administration nor anyone else has put together a cogent argument showing why violating FISA requirements enhances national security.
20 Mark Says:
February 6th, 2006 at 3:25 pm
When has it happened before?
21 Clint Says:
February 6th, 2006 at 4:31 pm
Peter-

What is it about FISA judges that makes you believe they are better able to provide oversight over NSA programs (even those that, as far as we know, are not statutorily related to the FISA court) than, say, the NSA inspector general (confirmed by the Senate just like a FISA judge) and the head of the NSA (ditto) and the chairs and ranking minority members of the House and Senate Intelligence Committees?

All of these people were directly involved in the oversight of this program — and they are hardly partisan hacks. This program wasn’t a handful of guys acting on orders secretly passed to them by Karl Rove.

Mark-

The most infamous example is when Attorney General Robert F. Kennedy authorized the FBI to tap the phones of the Rev. Dr. Martin Luther King, Jr. The practice was far more common than most people were comfortable with throughout the Kennedy and Johnson administrations, which led to the FISA law in the first place (just as soon as that power had passed to the Republican Party).

More recently, photocopies of the FBI files of prominent Republicans were found lying around in an office in the Clinton White House.

I assume Peter didn’t mean to imply that it had happened before in the Bush administration.
22 Jamie Says:
February 6th, 2006 at 4:55 pm
peter -

Like pretty much everyone on your side of this issue, you begin with the assumption that FISA warrants were required for the surveillance in question (even though we don’t know what it was), and go from there to make statements about how the Bush Administration acted illegally by not getting them. The Administration continues to maintain that warrants were not required in the cases where they didn’t seek them. Clearly they think they have a valid legal argument to make, and the pronouncements of any number of opponents don’t change that fact; it’ll come down to a ruling on the legality, not to a shamefaced admission on the part of the Administration that yes, you were right all along, they really were breaking the law with full intent.

My understanding of the now-infamous 72-hour rule for FISA warrants is (as articulated by the AG, AG) that in order to go forward with surveillance during that 72-hour window, all evidence necessary to establish probable cause must already be in hand for the AG to OK the warrantless surveillance. You can’t use information learned during the 72-hour period to get the warrant. (It almost seems like a “long weekend” provision, where you know you could get a warrant if only you could get to the judge, so you have a responsible person witness that you could get the warrant and then you’re committed to actually going and getting it before that 72-hour deadline.)

So… as long as we’re all throwing out hypotheticals here, mine, which squares with the Administration’s claims that in every case where a FISA warrant was required, they got one, is here: Using Article II-plus-AUMF authority, Bush authorized the data-mining/packet-sniffing phase against suspected terrorists and those with whom they communicated, and then, when “trigger” words or phrases occurred, the Administration had probable cause (first, that one side of the convo’ was known or suspected al Qaeda; second, the presence of said trigger(s)) and sought FISA warrants.
23 peter Says:
February 6th, 2006 at 5:00 pm
I have no idea whether FISA judges are better able to oversee NSA programs than the NSA inspector general, although presumably having someone outside the NSA eliminates favoritism or conflict of interest. I would assume that FISA judges are better equipped than the ranking members of the intelligence committees, if only because presumably they don’t have the time or bandwidth to evaluate a large number of cases in their granularity.

However, what I or others think is unimportant: the fact is that the law requires getting warrants from FISA. If there are people better qualified than FISA judges to issue warrants, then let’s change the law. However, as long as the law is on the books, it ought to be followed.

Correct, I meant previous administrations, not the Bush administration.
24 protein wisdom Says:
February 6th, 2006 at 5:19 pm
Odds, Ends (including a brief review of the NSA "domestic spy" proceedings)

1. Thanks so much to John Nowak for the Ed Wood SE DVD. A great flick, and I look forward to poring through the extras. 2. After my weeks of doing battle over the NSA "domestic spying" controversy, I am now alerted that Pajamas Media will be …
25 peter Says:
February 6th, 2006 at 6:34 pm
Jamie:

The Bush administration can claim whatever it wants, but the fact is that the law does require warrants to be obtained. That’s what the law says – it’s there in black and white. The law was enacted precisely to prevent the executive branch from conducting electronic surveillance without warrants, which (by Bush’s admission) is what they did.

I’m not sure I follow you in your second paragraph. You’re suggesting that the NSA starts eavesdropping on someone, finds something incriminating, and then doesn’t have enough time within 72 hours of first listening to get a warrant? Why were they listening in the first place?

Your third paragraph conflates two NSA programs. It has been reported that there is an NSA program which eavesdrops on specific individuals, as well as a second program which uses data mining. Your implication is that there were no warrantless wiretaps of specific, targeted individuals. If this is true, then I have no problem with it: data mining seems to me to be perfectly legitimate, similar to a camera at an intersection aimed to catch people running red lights. However, both Bush’s admission and the reporting thus far indicate that the government did, in fact, wiretap specific, targeted individuals without warrants.
26 Scott Says:
February 6th, 2006 at 7:24 pm
That’s what the law says – it’s there in black and white.

The followup court decisions about what the law MEANS are also in black and white. FISA does not trump the President’s constitutional authority.

See Powerline’s numerous entries on this point.
27 peter Says:
February 6th, 2006 at 7:35 pm
There was a thread about a month ago about Powerline. The cases which Powerline discussed either pre-dated FISA or were not relevant to the current NSA programs. The FISA requirements were never the subject of a court case because – as far as we know – they have been followed by every President until Bush, so any litigation would be moot.

The FISA law is very clear, and it has never been overturned or modified in judicial review.
28 Clint Says:
February 7th, 2006 at 7:02 pm
Peter-

You wrote: “the fact is that the law requires getting warrants from FISA.”

You’ve omitted an important qualifier — FOR WHAT does the law require getting warrants from FISA.

Can you cite any clear and unequivocal evidence that the kind of surveillance for which FISA requires warrants is the same as the kind of surveillance being performed under the NSA program in question?

I strongly suspect that you cannot — if you can, then we’ve got another example of a President staring into the camera and lying point blank to the American people, and about something significant. If you can indeed present evidence of that, I might be inclined to support calls for impeachment hearings.
29 peter Says:
February 7th, 2006 at 10:42 pm
Asked why FISA needed to be circumvented, Bush declared: “The FISA law was written in 1978. We’re having this discussion in 2006. It’s a different world. And FISA is still an important tool…. But also…I said, look, is it possible to conduct this program under the old law? And people said, it doesn’t work in order to be able to do the job we expect us to do.”

If that’s not an acknowledgement that the administration ignored FISA, I’m not sure what is. (Incidentally, the Constitution was written in the 1780’s — but hey, it’s a different world now…)