When the NSA domestic spying story first broke, President Bush "assured" the American people that the program does indeed have
oversight:
And without revealing the operating details of our program, I just want to assure the American people that, one, I've got the authority to do this; two, it is a necessary part of my job to protect you; and, three, we're guarding your civil liberties. And we're guarding the civil liberties by monitoring the program on a regular basis, by having the folks at NSA, the legal team, as well as the inspector general, monitor the program, and we're briefing Congress.
Thanks to the non-partisan Congressional Research Office, we already know that those "briefings" to Congress weren't about oversight as much as a pre-emptive CYA measure which likely violated the law. As for oversight from the Department of Justice, recall that deputy Attorney General deputy Attorney General James B. Comey refused to sign off on the program because of "concerns about its legality and oversight." Even then-Attorney General John Ashcroft refused to sign off on the program. Only after the program was revised in 2004 did the Department of Justice again sign off on it.
Yesterday, I wrote about the President's Foreign Intelligence Advisory Board, a part of the Executive Branch which is supposed to advise the President on the legality of his foreign intelligence surveillance programs. It's supposed to be a "non-partisan" and "expert" panel. In 2002, the Board was comprised mostly of Bush's Rangers & Pioneers and executives from MBNA, Halliburton, and AT&T. While there were a few legal and national security experts on the 2002-2004 PFIAB, the stench of cronyism in that critical body raises the question of whether the Board was able to provide any oversight--at all.
But is that "oversight"? The Department of Justice, the NSA, even the President's Foreign Intelligence Advisory Board--those are all entities within the Executive Branch.
More below the fold...
AN ABSENCE OF JUDICIAL OVERSIGHT
The most disturbing element of Bush's domestic spying program is that he has removed judicial oversight entirely. Under FISA, the application for a warrant--even warrantless surveillance--all of it is ultimately ruled upon by a FISA court judge, a neutral and detached magistrate that makes the judicial determination of whether probable cause exists to order the surveillance. Under Bush's program, there are no judges. In the distorted spying world created by his royal edict, judges don't exist. They don't determine probable cause. Instead, the decision of whether there is sufficient evidence to violate someone's privacy is made by the Executive Branch. Even worse, it's not made by the Department of Justice, it's not made in the President's office. No, the judicial determination of whether a citizen is "linked" to Al Qaeda is left to a random
NSA staffer:
But even after the imposition of the new restrictions last year, the agency maintained the authority to choose its eavesdropping targets and did not have to get specific approval from the Justice Department or other Bush officials before it began surveillance on phone calls or e-mail messages. The decision on whether someone is believed to be linked to Al Qaeda and should be monitored is left to a shift supervisor at the agency, the White House has said.
The Supreme Court, albeit in a domestic surveillance case, has held that the 4th Amendment demands judicial oversight:
These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359-360, 88 S.Ct. at 515-516 (Douglas, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.
United States v. the U.S. District Court for the Eastern District of Michigan, 407 U.S. 297 (1972)
Can we trust the Executive Branch when it usurps the role of the judiciary? The answer, simply, is no.
A LACK OF CONGRESSIONAL OVERSIGHT
Moreover, there was zero oversight by Congress, since all but eight members of Congress were never told of the program. The eight that were "briefed" were ordered not to take notes and not to reveal any of the information to anyone. The Bush administration has a long history of keeping the Congress in the dark about its foreign intelligence activities.
Shortly after September 11th, the Senate began a comprehensive, critical review of FISA, the FBI, and our use of foreign intelligence. The review, spearheaded by Senators Senator Patrick Leahy, Charles Grassley, and Arlen Specter, was described as the "first comprehensive oversight of the FBI in nearly two decades." The focus of the investigation was to determine how FISA was implemented leading up the 9/11 attacks. In February 2003, an interim report was issued.
No mention is made in the report about the President's domestic spying program. What is mentioned, though, time and time again, is the stonewalling by this administration when Congress sought to conduct its oversight duties. Then FBI Director Robert Mueller stated that he understood and "firmly believe in the right and the power of Congress to engage in its oversight function. It is not only a right, but it is a duty."
Yet when Congress tried to conduct its oversight duty and examine the Bush administration's foreign intelligence activities, they were constantly rebuffed:
"The DOJ and FBI have either delayed answering or refused to answer fully legitimate oversight questions. Such reticence only further underscores the need for continued aggressive congressional oversight. Our constitutional system of checks and balances and our vital national security concerns demand no less."
In light of these comments, the idea that Congress would have implicitly approved of a program with NO congressional or judicial oversight is nothing more than the pathetic, baseless spinning of an embattled Executive. I leave you with the final conclusion of Senators Specter, Leahy, and Grassley from their interim report:
Many things are different now since the tragic events of last September, but one thing that has not changed is the United States Constitution. Congress must work to guarantee the civil liberties of our people while at the same time meet our obligations to America's national security. Excessive secrecy and unilateral decision making by a single branch of government is not the proper method of striking that all important balance. We hope that, joining together, the Congress and the Executive Branch can work in a bipartisan manner to best serve the American people on these important issues. The stakes are too high for any other approach.