- The Washington Times - Monday, February 13, 2006

On Feb. 6, before the Senate Judiciary Committee, Attorney General Alberto Gonzales anemically defended President Bush’s National Security Agency (NSA) program that targets U.S. persons in the United States for electronic surveillance on his say-so alone in contradiction to the Foreign Intelligence Surveillance Act (FISA).

Indeed, the attorney general himself is unconvinced. He has bowed to the Foreign Intelligence Surveillance Court’s insistence that no information extracted from NSA’s warrantless surveillances be used in seeking FISA domestic wiretapping authority because its program is legally tainted.

In any event, the political tide has turned against Mr. Bush’s usurpation of legislative authority and contempt for the Constitution’s checks and balances. Time and further public education will force Mr. Bush to collaborate with Congress to enact new legislation authorizing more comprehensive surveillance of suspected al Qaeda operatives and repudiating the monarchical claims of the White House.

Public opinion is slow but decisive. Sixteen months elapsed between John Dean’s devastating disclosures to the Senate Watergate Committee and President Nixon’s resignation.

The attorney general’s presentation careened between the preposterous, the outlandish and the outrageous. He asserted the “plain language” of the Authorization to Use Military Force (AUMF) against international terrorist organizations implicated in the September 11, 2001, attacks intended to override FISA. The AUMF was enacted Sept. 18, 2001. If its language were “plain,” it would be expected Mr. Bush would have been advised with alacrity that FISA no longer constrained his authority to target American citizens for surveillance. It might be expected that at least one member of Congress would have thought a vote to enact the AUMF was a vote to repeal FISA. But neither was the case. More than four years elapsed before the president’s lawyers concocted the AUMF legal defense. And no Member has declared voting for the AUMF was understood and intended to supersede FISA’s regulation of eavesdropping on Americans during wartime.

Mr. Gonzales startlingly revealed that the NSA’s warrantless surveillance program excludes purely domestic al Qaeda- to-al Qaeda communications of the type that might have thwarted September 11. The program covers only calls traveling between the United States and a foreign point where an American citizen in the United States is the target of suspicion.

Mr. Gonzales explained Mr. Bush was worried that domestic-to-domestic interceptions would be politically costly and not worth the price of protecting the American people from terrorism, as confirmed by the following exchange between Sen. Herb Kohl, Wisconsin Democrat, and Mr. Gonzales:

Mr. Kohl: “If you would go al Qaeda-to-al Qaeda outside the country — domestic-outside the country but you would not intrude into al Qaeda-to-al Qaeda within the country — you are very smart. So are we. And to those of us who are interacting here today, there’s something unfathomable about that remark.”

Mr. Gonzales: “Senator, think about the reaction, the public reaction that has arisen in some quarters about this program. If the president had authorized domestic surveillance, as well, even though we’re talking about al Qaeda-to-al Qaeda, I think the reaction would have been twice as great. And so there was a judgment made that this was the appropriate line to draw.”

In other words, the fear of adverse public reaction caused the commander in chief to shy from warrantless domestic-to-domestic surveillances. The fear is mystifying because President Bush hoped to keep the NSA’s spying perpetually secret from the people. Moreover, what is to be made of the sincerity of a president who talks so forcefully about the urgency of crushing terrorism yet flinches from measures that might awaken political opposition?

Additionally troublesome was the attorney general’s testimony that there had been no research on the legality of domestic-to-domestic interceptions if Mr. Bush decides on broader NSA spying because of new foreign intelligence. This though that option has been on the table more than four years.

Finally, Mr. Gonzales’ assertion that FISA is workable for al Qaeda’s domestic communications but unworkable for international calls is incredible on its face.

President Bush has repeatedly maintained that only known al Qaeda operatives are targeted by the NSA; and, that the spying is incontestably legal. The attorney general’s testimony was unpersuasive on both counts. According to Mr. Gonzales, career professionals at the NSA decide which Americans in the United States to target for surveillance.

They are instructed to select citizens reasonably suspected of membership in a terrorist organization. NSA lawyers and the NSA inspector general review the spying program. Every 45 days the Justice Department reiterates the legality of the warrantless spying on citizens.

The attorney general ridiculously insinuated that concerns over indiscriminate spying were unjustified because the NSA professionals are infallible. They never err in their targeting. There is no need for an outside check to supervise their enormous discretion to invade the communications privacy of American citizens on American soil. The experts, not independent federal judges, should be trusted to protect civil liberties consistent with defeating terrorism.

As regards legality, Mr. Gonzales made the stunning admission he has no knowledge of whether the reasonable basis standard for selecting surveillance targets has proven accurate in a fair percentage of cases. Published reports indicate the accuracy rate approximates 1 percent or less. But the constitutionality of searches under the Fourth Amendment pivots on the probability something useful will turn up. Thus, without knowing the results of the NSA’s warrantless foreign intelligence spying, the attorney general could not possibly voice an intelligent opinion on its constitutionality.

What should be done?

President Bush should confess error. Neither Congress nor the public should gloat. Partisan advantage should be resisted. And new legislation should be fashioned to ensure the president is armed with muscular tools to gather foreign intelligence against international terrorists while reasonably protecting the civil liberties of American citizens.

Bruce Fein is a constitutional attorney and international consultant with Bruce Fein & Associates and the Lichfield Group.

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