Before President Bush’s extraordinary admission this past weekend that he indeed had authorized the National Security Agency (NSA) to conduct electronic surveillance on U.S. citizens, this column was going to cover the Iraqi elections and was titled “No white smoke spotted in Baghdad,” a reference to how the Vatican announces the selection of a new pope. The point of the piece was that the Dec. 15 vote marked the start of a lengthy and uncertain process in attempting to create a unified and working Iraqi government.
But the news of domestic spying on U.S. citizens overshadowed the Iraqi elections, especially since the procedures specified by the Federal Intelligence Surveillance Act (FISA) of 1978 for court-ordered authority to conduct covert surveillance of American citizens seemed to have been bypassed or suspended.
The president, along with senior members of his administration, argued that the Constitution and commander-in-chief provision gave the necessary authority to order this surveillance and that advances in cell phone technology necessitated streamlined procedures to monitor suspect conversations.
Secretary of State Condoleezza Rice further explained that September 11 changed the nature of the threat and hence the need for expanded authority to counter it. She noted that this authority was reviewed every 45 days and careful oversight was exercised by White House and Justice Department lawyers. However, as the Bush administration’s policies for the treatment of enemy combatants became a self-inflicted wound, wiretapping and surveilling U.S. citizens without court order is almost certainly going to prove as or more explosive an issue — if Congress lives up to its constitutional duties.
Domestic spying is not new. In the Nixon administration’s first term, paranoid about the security leaks that led to the release of the Pentagon Papers, the White House formed the infamous “Plumbers,” with the specific charge of plugging these leaks. The Plumbers would come to grief over Watergate. Wiretapping of key staff members of the National Security Council, including a future national security adviser and a deputy national security adviser was authorized as well.
At the same time, the Department of Defense and the CIA delved into domestic spying activities that included stories about NSA’s monitoring phone conversations made inside the United States by American citizens. One of the secret CIA programs was to surveil foreign nationals inside America, a clear violation of the law and the responsibility of the FBI.
In the aftermath of those and other covert intelligence activities, the Church Committee, named for the late Democratic Sen. Frank Church of Idaho, investigated the CIA and produced a long list of reforms. The real culprit was the Nixon administration that sought to use the agency in ways that broke the law.
Whether the law was broken in authorizing the current secret domestic surveillance program or not, to its credit, the administration has been straightforward in admitting what it has done and chose neither to stonewall nor cover up its actions. Whether the public will learn what members of Congress knew about this activity and when they knew it are questions that need answers but will not determine if any laws were broken. And whether a Republican Congress will diligently pursue these questions or continue to do what it has done for nearly five years and fail to carry out its oversight responsibilities also remains to be seen. But the pattern of how this administration does business is unsettling.
As the administration erred over Iraqi WMD and underestimated the difficulties of rebuilding Iraq, similar misjudgments were reflected in the handling of enemy combatants and the definition of “torture.” Now, domestic spying surfaces. In these instances, the administration relied on intricate definitions of what constituted torture and what authorities the president could claim in protecting the nation in the war on terror, a war, by the way, that remains undeclared by Congress.
Perhaps the strongest justification for its policies on enemy combatants and now domestic spying is derived from the premise that in certain circumstances, such as when a detainee or suspect had information that could prevent an attack that could kill tens or hundreds of thousands, extreme methods were necessary.
Yet, in 1978, when FISA was enacted, the threat of the Soviet Union included the possibility of thermonuclear war in which the United States would have been obliterated. Extreme methods were not deemed necessary then when the absolute risk was catastrophic. So, the administration must explain why today is sufficiently different to justify these extreme steps and Congress must demand that the answer be full, complete, convincing and legal.
Failure on the part of the White House or Congress to act responsibly could prove far more consequential than the actual damage wrought by September 11. The nation is at a crucial juncture. How this will turn out is far from clear.
Harlan Ullman is a columnist for The Washington Times.