Investigating the NSA

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A congressional criminal investigation into the leak to the New York Times of the National Security Agency's warrantless collection and data-mining of e-mails and phone calls in and out of the United States is indeed required because of the highly classified nature of the information. But Attorney General Alberto Gonzales is not a credible conductor of the probe because he was deeply involved as head of the office of counsel at the White House when George W. Bush authorized this NSA program.

Moreover, since the news broke, and keeps on breaking, Mr. Gonzales has been one of the chief defenders of the president's further unleashing of the NSA. This cheerleading hardly inspires confidence that the attorney general will not have already reached his conclusions.

Also, with the Senate conducting its own investigation, there is White House pressure to move that inquiry from Arlen Specter's Judiciary Committee to the Intelligence Committee. But the latter's chairman, Pat Roberts, Kansas Republican, is so indifferent to Fourth Amendment privacy protection that he supports giving the FBI the power, through administrative subpoenas, to seize extensive personal data from Americans not involved in any criminal acts. There is no judicial review of those subpoenas.

Whoever is in charge of the inquiry should call, as a witness, James Comey, who was an effective federal prosecutor of terrorists. In 2004, while then-Attorney General John Ashcroft was hospitalized with pancreatitis, Mr. Comey refused to sign off on certain expansive surveillance operations of the NSA authorized by the president because he was not sure they were legal.

The investigating committee should also squarely confront the repeated claim by the president's defenders that in November 2002, the Foreign Intelligence Surveillance (FISA) Court of Review strongly upheld the president's assertion that his "inherent powers" justified his warrantless extension of the NSA's powers. Said this FISA appellate court: "We take it for granted that the president does have that authority, and assuming that it is so, the Foreign Intelligence Surveillance Act could not encroach on the president's power," adding that all other courts ruling on this issue had agreed.

But this taking for granted of the legality of what we now know, so far, of the vast data-mining that the NSA has engaged in by presidential order, has not been testedbythe Supreme Court. If these presidential powers delegated to the NSA are settled law, why did an FISA judge, James Robertson, resign from the secret court in protest against George W. Bush's spying program over Americans in and out of the country? The Washington Post reported on Dec. 21 that "Two associates familiar with (Robertson's) decision said Tuesday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable."

Moreover, Mr. Robertson was not the only member of the FISA court with serious concerns that the president had gone too far. In a front-page Dec. 22 story, The Washington Post reported: "Several members of the Foreign Intelligence Surveillance Court said in interviews that they want to know why the administration believed secretly listening in on telephone calls and reading e-mails of U.S. citizens without court authorization was legal. Some of the judges said they are particularly concerned that information gleaned from the president's eavesdropping program may have been improperly used to gain authorized wiretaps from their court."

Also worth exploring is the president's repeated assertion that he consulted with key members of Congress on all of this, and, so, they provided oversight. But in a Dec. 29 letter printed in the Wall Street Journal, Sen. Russ Feingold, Wisconsin Democrat, addressed whether the president had indeed been faithful to the constitutional separation of powers: "Informing a handful of congressional leaders who are prohibited from discussing what they have been told is not oversight, and congressional inaction under these extraordinary circumstances is not approval." And, as for the president citing "stringent presidential review" of the program, a Jan. 1 letter in the New York Times from Jeremy Barth notes: "the president is not a neutral magistrate,andtheFourth Amendment does not contemplatetheexecutive branch as a check or balance upon itself."

Congress must remember that the Constitution has not been suspended, and its members do have crucial oversight responsibilities, especially in this administration.

Nat Hentoff's column for The Washington Times appears on Mondays.