Controversy over and congressional investigations concerning the NSA-driven Warrantless Surveillance Program (The Program) contributed to the recent resignation of Attorney General Alberto Gonzales.
Additionally, the FISA Update bill rammed through congress before the recent congressional recess legalized portions of The Program, and has raised the ire and outrage of those interested in Civil Liberties and protecting the constitution.
On March 10, 2004, disagreement over the legality of The Program nearly resulted in the resignation of the highest-ranking members of the Justice Department. Resignations were averted only when the President agreed to modify the Program.
The nature of the controversy that precipitated the crisis is Classified. However, the chief architect of the March 2004 resistance to The Program, former head of the DOJ Office of Legal Council Jack Goldsmith, has now exposed the secret controversy of The Program in unprecedented detail.
Suspicions that The Program broadly captures ALL communication
Most of the information we have about the NSA-driven Warrantless Surveillance Program has been inferred from the language of the FISA update, and analysis of the nimble word-dancing around the exact name and scope of The Program in testimony by Alberto Gonzales, James Comey, and Robert Mueller in recent House and Senate Judiciary Committee hearings.
In comparing the 3 versions of the FISA update bill recently debated in the House and Senate, it is clear from the language of the bill that the White House demanded (and was given) approval for placing the "capture devices" on the backbone of communication structure within major TelCos and ISPs (that have already existed secretly for some time). I and others reasoned that legalization of this access gave permission for the NSA to monitor ALL communication flowing within American communication networks. The purpose of this operation is to screen, mine or sift the information for any "foreign intelligence information concerning persons reasonably believed to be outside the United States."
This means that without a warrant, the Government can access ALL communication, including communication exclusively exchanged between domestic parties. Because this monitoring of all communication necessarily includes Domestic-Domestic communications between US Citizens on US soil, there are obvious concerns of Fourth Amendment violations.
Shedding more light on the crisis over The Program
From recent interviews with Former OLC head Jack Goldsmith in advance of his new book, we now have another view on the controversy over The Program from the man who's legal analysis instigated the Hospital Signature Mission and Gonzales-Comey Showdown in John Ashcroft's ICU room on March 10, 2004.
According the recent interviews with Goldsmith, Goldsmith disputed the legality of The Program. Discarding prior opinion (likely written by John Yoo) that allowed the President unlimited power in prosecuting the "war on Terror", Goldsmith's analysis as head of the DOJ Office of Legal Counsel was supported by James Comey and John Ashcroft who argued in early March 2004 that the DOJ could no longer sign off on The Program. This decision was adamantly contested by the architect of the program and Unitary Executive Zealot David Addington (then legal Counsel to Dick Cheney) and the power struggle manifest in Ashcroft's Hospital room on March 10, 2004. The unfettered presidential power advocates (Gonzales/Addington/Cheney) were defeated in their quest for DOJ approval.
Suspicions Confirmed
The most striking piece of information in all of the recent Goldsmith interviews emerged in an interview with Terry Gross broadcast yesterday on NPR. At minute 3:38 into the interview, we hear the following exchange [my transcription and emphasis]:
Gross: Another sentence that has been quoted a lot from your book, you write that during a tense meeting at the White House in February 2004, in referring to the FISA Court, the court that has to approve warrants related to the Federal Intelligence Surveillance Act, Addington said to you "We’re one bomb away from getting rid of that obnoxious court."
People are interpreting that that he just couldn’t wait for the next bomb so that they could get rid of the FISA court. How do you interpret what he meant by that?
Goldsmith: I don’t think that’s quite an accurate interpretation. I think that the gloss I would give is that he certainly did not like the FISA court. He thought that the entire FISA structure that required the commander in chief to go to a court to get a warrant to find out where the enemy was- He thought that was invalid and an unconstitutional infringement on the President’s power. And he believed that FISA was constraining the President in a way that may get a lot of people killed, and I think what he meant by that is that when the next attack comes, and the attack is attributable to a legal system that constrains the President, we’ll get rid of that legal system.
For the first time, we have a clear description of the controversy over The Program. Goldsmith notes that Addington's concern was the requirement to go to the FISA court for a warrant "to find out where the enemy was".
Thus, one can infer that The Program sifted all communication data, without knowing whether a given communication was foreign or domestic. Goldsmith likely argued that a FISA warrant was necessary to deal with the mined data. Because The Program had no way to decipher whether the broadly mined communication was foreign-foreign, foreign-domestic or domestic-domestic, further analysis of the data (including traditional evaluation of the communication content to determine whether it was a foreign-foreign communication not subject to existing FISA waw) required a warrant to protect potential 4th amendment rights of American Citizens and conform to existing FISA law.
In summary, The Program, appears to have evaluated ALL COMMUNICATION; everywhere, every way, and at any time. At least from October 2001 through March 2004, it did this without warrants and without any oversight outside of the Executive Branch. Goldsmith notes that when the President finally came to congress for a FISA update, he was given "everything he asked for and more". The FISA update now legalizes this broad-scale data mining of all communication "concerning foreign intelligence", and this includes sifting through domestic-domestic communication. Traditional wiretapping surveillance of domestic-domestic surveillance still requires a warrant, but make no mistake, ALL communications are "being monitored" for valued content by the Government.
Congress is finally holding hearings on the meaning of the FISA update they signed into law. I hope that they will recognize the Civil Liberties of Americans they have traded mindlessly away in the interest of a program of unclear value.
Note:
Goldsmith has also given interviews to Bill Moyers and Dahlia Lithwick, and there is a detailed article about him in tomorrow's NY Times Magazine. The NPR interview is the only occasion on which he revealed the nature of Addington's problem with FISA and the probable basis of Goldsmith's legal analysis of The Program.