In the four years between the inception of the program and
its revelation, the Bush administration affirmatively concealed its
existence, with the President, famously, even going so far as to
preemptively — and falsely — announce that "any time you hear the
United States government talking about wiretap, it requires — a wiretap
requires a court order. Nothing has changed by the way."
Even worse, in that time span, Attorney General John Ashcroft and then
Alberto Gonzales successfully negotiated with Congress four rounds of
requested changes to FISA, the very statute they were routinely
violating. Not once during the
faux
debate about security and civil liberty generated by the amendments
they sought did the administration advise Congress in any official or
unofficial way that it was violating the statute on a daily basis; nor
did it seek revisions that would address the problems it later claimed
existed.
Given such egregious conduct — conduct, in fact,
unprecedented in our history — one would think Congress would take
swift and decisive action. Hardly. An astoundingly earnest debate
ensued over the administration's ever-changing rationales and frivolous
legal arguments (superbly reviewed at Glenn Greenwald's excellent blog,
Unclaimed Territory), but as
Patrick Leahy described this sorry state of affairs:
"On
March 31, 2006, the Senate Judiciary Committee held a hearing on Sen.
Russ Feingold's call to censure the President. This was the Committee's
fourth hearing to consider the President's domestic spying activities.
But while the Committee has now heard from a total of 20 witnesses,
only one had any knowledge of the spying activities beyond what was
reported in the newspapers. That witness was Alberto Gonzales, who
flatly refused to tell us anything beyond ‘those facts the President
has publicly confirmed, nothing more.'"
In short, neither
Congress, nor the public knew anything more at the end of the Senate
hearings in 2006 than they had known when the hearings began. The
administration slithered off without being held to account for, or
required even to superficially reveal, its activities. And Congress
itself simply slip-slided away.
Where Did We Think We Were Going on January 17, 2006?
On January 17, it appeared that, under the leadership of Democratic
Senator Leahy, we might begin to get some answers from Alberto Gonzales
at the Senate Judiciary Committee Hearing scheduled for the next day
about the President's secret surveillance program: What is it? When did
it begin? Who does it target? How are its targets chosen? Is it, as the
law requires, particularized — directed toward a certain target — or
simply a data-mining program that collects massive amounts of corporate
and public online information and then cross-references it against U.S.
intelligence and law-enforcement records? Who carries it out? What is
the legal justification for surveillance outside the FISA statute?
It also seemed that we were proceeding in an orderly fashion towards a
judicial review of the NSA spying program. In August 2006, in the case
of
ACLU et al. v. NSA,
United States District Judge Anna Diggs Taylor of the Eastern District
of Michigan ruled that the administration's National Security Agency
warrantless surveillance program must be stopped, both because it
violated FISA and because it constituted an unconstitutional violation
of the First Amendment right to free speech and the Fourth Amendment
right to be free from unreasonable searches and seizures. The United
States appealed and, although the Sixth Circuit Court of Appeals stayed
the execution of Judge Taylor's order pending that appeal, it scheduled
the oral arguments on the case for January 31, 2007. How the Court
would rule is impossible to predict, but one possible outcome, of
course, would be a decision that the administration's domestic spying
program is, as Judge Taylor had found, both unconstitutional and
illegal under the U.S. Criminal Code; another would be a finding that
the spying program was illegal based on one of those grounds.
From the administration's point of view, in other words, as of January
17, the NSA eavesdropping plan was careening towards not one, but two
very dangerous, intersections. What does the Bush administration ever
do under such circumstances? Address its adversaries and make its
arguments openly and honestly? No. Its
modus operandi is always the same. It evades; it manipulates the system; it darts away — or at least it tries to.
In this case, by preemptively announcing that it was no longer going to
conduct the program whose existence it had hidden completely for four
years — and sparred with Congress about for the next 18 months — the
administration clearly fervently hoped that it could wriggle away from
congressional and judicial oversight. The ploy was, in other words,
less a flip-flop than a slither. But the maneuver, clever as it appears
at first blush, is hardly a surefire remedy for the administration's
problems.
Where the Heck Are We Now?
On the same day that the Department of Justice announced its decision
not to reauthorize its unilateral, illegal wiretapping program, it
notified the Sixth Circuit Court of Appeals that it would be submitting
documents setting forth its arguments regarding the effect of this
decision on the pending appeal. Clearly, the government lawyers intend
to argue that the case is moot:
There's nothing left to decide because we're not doing it anymore.
There are, in fact, many legal counterarguments to this facile
approach. For one thing, even if one assumes, for the sake of
discussion, that the FISA problem has been addressed by the
administration's new plan, the constitutional questions might still
remain. There is another significant argument that weighs against the
dismissal of the case for which the administration has been so cleverly
maneuvering — a doctrine holding that the court should still hear
controversies that may have been resolved when the issue under
consideration is
"capable of repetition,
yet evading review." This doctrine is particularly applicable to this
situation, where neither the Court, nor Congress, nor the public have
any way of knowing whether the administration has in fact abandoned its
previous practices or whether it will ever decide to reinstate them.
For such determinations, everyone has to rely on the word of Alberto
Gonzales and the whims of the Department of Justice. The American Civil
Liberties Union and the many diverse plaintiffs who have joined its
lawsuit — Greenpeace, writer Christopher Hitchens, and Larry Diamond of
the Hoover Institution, to name a few — will certainly make this
powerful argument in the weeks to come.
The same rationale
argues powerfully in favor of Congress forging ahead, regardless of
Gonzales's bland assurances. Not only do we not have any guarantee that
the administration is doing what it says its doing, or will continue to
do what it says it plans to do, we still don't have the remotest idea
what that plan is. As Senator Chuck Schumer (D-NY) pointed out during
questioning of Gonzales, we don't know whether the warrants now being
issued involve specific targets, as is required by FISA, or whether the
Foreign Intelligence Surveillance Court has simply agreed to give
blanket approval to warrants directed at a large group of targets, the
very problem that Congress has theoretically been trying to address
since early 2006: "If it's a very broad-brush approval — and again,
because it's secret, we have no way of knowing — it doesn't do much
good," Schumer commented.
We do, however, have a remarkably consistent track record on this matter, which should tell us something. We know that
none
of the administration's conduct with regard to Congress and the
National Security Agency domestic spying program has been undertaken in
good faith. Indeed, the second phase of this odyssey, from December
2005 when the secret program was revealed, to the present, begins with
the same phrase as the first:
Unbeknownst to the American people and Congress…
Unbeknownst to the American people and Congress, during 2006, while
everyone else — naively thinking we lived in a democracy -– engaged in
this ongoing
faux
debate, earnestly trying to divine what the administration was actually
doing, discussing the pros and cons of the nearly laughable arguments
they were making in support of whatever it was, and in good faith
attempting to craft amendments to FISA that would accommodate the
unique requirements of whatever it was that no one knew, the Bush
administration was acting entirely on its own as if neither the public,
nor Congress even existed.
We may still be stumbling around in the dark, struggling to get a grip on what the administration is doing, but we
are getting nearer to the destination; this, then, is decidedly
not a good time for Congress to be slip-slidin' away. On the contrary, wouldn't this be a good time to reach for a subpoena?
Elizabeth
de la Vega is a former federal prosecutor with more than 20 years of
experience in both Minneapolis and San Jose. Her pieces have appeared
in the Nation Magazine, the Los Angeles Times, and Salon, among other
places. A regular contributor to Tomdispatch.com and the author of United States v. George W. Bush et al., she is poised to start on a multi-state book tour that begins January 31 at Shaman Drum bookstore in Ann Arbor, Michigan, the scene of her college "crimes." She may be contacted at Elizabethdelavega@Verizon.net.
Copyright 2007 Elizabeth de la Vega
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