Missing the point

The biggest irony of the whole NSA surveillance brouhaha that President Bush is now struggling with is that, if framed and spun properly beforehand, the concept would likely get the support of the American public. “If someone believed to be from Al Qa’eda is calling someone in the US, they want to be able to listen in? Damn! You mean they aren’t already? What are we paying those guys for?”

The NSA surveillance program, despite the media attempts to frame it as a “domestic spying program,” actually does make a certain amount of practical sense (even if its new dubbing as the “Terrorist Surveillance Program” is equally annoying spin). The biggest problem with the program is not what it’s doing, but how it’s been done: in secret, and with a fairly flimsy excuse.

How secret was it? Well, not (so far as we know) completely secret …

Bush noted that hearings will open in Congress soon, and Sen. Pat Roberts, R-Kan., who accompanied the president here, was among the lawmakers on Capitol Hill who were given regular updates about the surveillance by the White House. Sen. Arlen Specter, R-Pa., chairman of the Judiciary Committee, will preside over the hearings.

“It’s amazing that people say to me, `Well, he’s just breaking the law,” the president said, with Roberts sitting behind him on stage at Kansas State University. “If I wanted to break the law, why was I briefing Congress?”

Well, yes, some congressional leaders (but not, evidently, the entire Intelligence subcommittees of Congress) were being occasionally briefed on this, which makes some of the Democratic congressional posturing about this a bit suspect. I don’t know enough about the existing laws to know what congressional reporting is required, but it seems a bit sketchy.

And, of course, while it might have been operationally secret, but secrecy doesn’t necessarily mean unexpectedness. If I were an Al Qa’eda terrorist type who was calling someone in the States, I’d assume that my call was being monitored, even assuming I grasped the subtleties of US wiretapping laws, which makes the claim that revelations of the program is a threat to national security just goofy — but in keeping with the Bush administration rep for being paranoid about leaks.

What I don’t understand, though, is why this program was necessary in the first place. There is, as I understand, a congressionally sanctioned method of dealing with these sorts of foreign intelligence intercepts, on an emergency basis, or even getting approvals after the fact. If so, then why bypass the FISA court approvals? The only reasons that come to mind:

1. There’s some flaw in the approved process that may lead to missing information opportunities. If so, I haven’t heard it.
2. The Bush Administration hates oversight, just on principle.
3. The Bush Administration has had occasions where the FISA courts have rejected an application for warrant which has, to their mind, endangered national security.
4. The program is being used for activities beyond what’s been revealed, and which would not be applicable to (or approved by) the court overview.

Or a combination thereof.

Of course, the biggest problem with having bypassed the court procedures for approval of such taps is that it throws into question various judicial actions in the past or forthcoming. After all, you can’t use illegally obtained evidence. Already there have been appeals filed in some cases.

But is it illegal? Ah … that’s the big question.

Unfortunately, the number of times that some activists have pointed and screeched “Illegal! Criminal! Impeachment!” at Bush has actually raised the bar for taking action or getting the public to take such charges seriously. Still, there are a lot of folks who are calling this blatantly illegal, and the Bush Administration response has been …

… “We can do what we want because Congress said there was a war on.”

Or, more fully:

Bush said a congressional resolution passed after Sept. 11, 2001, that authorized him to use force in the fight against terrorism, also allowed him to order the top-secret program. That operation was disclosed last month by The New York Times.

“Congress gave me the authority to use necessary force to protect the American people, but it didn’t prescribe the tactics,” Bush said, adding that the government needs to know why people linked to al Qaida are calling into the U.S. “One of the ways to protect the American people is to understand the intentions of the enemy.”

Um …

Is anyone listening to this, and considering what it implies? Is Bush arguing — and his supporters allowing — that the “use of necessary force” allows for any “tactics,” regardless of whether they would otherwise be legal? If we can couch something as “protecting the American people,” regardless of whether we’re talking about surveillance programs or disappearing people or assassinating journalists or strangling little puppies — is that okay?

The reason, after all, for the judicial and congressional oversight for wiretaps and other activities is that unfettered power will eventually be misused (and then misused to cover up its misuse). Appeals to national security are not necessarily evil, but they can be used by evil men for evil reasons. And our system of government was designed to place procedural barriers against such evil, since the Founders well recognized that evil men sometimes come to power.

And that’s the biggest problem I have with the NSA program as currently revealed. It’s being justified based on an open-ended rubric — “protecting the American people” — that provides no actual protection against misuse. Even if the Bush Administration is pure as the driven snow, and acting only from the highest, most noble motives and toward the most virtuous and laudable of ends, it’s still a bad precedent.

Just ask yourself how the current GOP leaders and pundits would be reacting if this sort of program were revealed under President Clinton — or under a President Gore, Kerry, or H. Clinton. We’d be hearing about police states and the end of the Republic and tyranny and endangered freedoms and, yes, impeachment.

Public debate about intelligence activities is always a dicey proposition, because revealing some activities, and capabilities, can compromise further efforts. And it’s always difficult to deal with questions of national security in a politically charged context, since folks will tend to talk out of both sides their mouth based on partisanship, not principle.

Still, to my mind, the Bush Administration’s position — “Trust us! We’re fighting to protect you!” — is just awful, especially coming from a Republican Administration, as well as one that’s not provided a lot of basis for trust. To my mind, it’s not a matter of the end, or even, to some degree, the means, but the reasoning behind those means. And in that category, the Bush Administration justification falls far short.