Sometimes I have this feeling that the Republicans are playing a game of Fox and Hound with us. Every time we get close to catching the fox, they throw a stick to distract us and like a pack of hounds we charge off in the direction they want us to go, baying and barking, while the Republicans have a good laugh. Meanwhile the fox escapes to live another day.
The current debate about NSA domestic spying without a warrant has led us down a dark alley where we may once again get mugged by the Republicans if we are not careful. The Republican spin machine is back in full operation with Karl Rove at the helm and, of course, they have a plan to once again pull Bush's fat from the fire. The plan calls for re-branding illegal domestic spying as the
"terrorist surveillance program". The theory behind the plan is that most Americans approve of keeping terrorists under surveillance and would, in fact, be upset with the administration if they did not keep tabs on terrorists. The White House would love to lure the Democrats into their trap and label us as being against terrorist surveillance. So we have to be careful to avoid being sucker punched again.
Our position would be a lot more tenable had the Democratic leadership challenged the White House on the domestic surveillance policy before the story was leaked to the New York Times. The administration claims that it has kept congressional leadership informed about what it was doing. It would seem that this is at least partially true because Nancy Pelosi, the ranking Democrat on the House Intelligence Committee, recently released a letter she sent to then NSA Director General Michael Hayden regarding his appearance before the committee on October 1, 2001, to discuss his view of his expanded authorities with regards to electronic surveillance since September 11th. The letter and General Hayden's response may be read here.
According to the National Journal the administration provided additional clues to members of Congress about what they were up to:
The administration has informed some lawmakers that the eavesdropping program the president authorized in 2002 is also designed to be an early-warning system. In late December, Assistant Attorney General William E. Moschella wrote to the top Democrats and Republicans on the House and Senate Intelligence committees, "The president determined that it was necessary following September 11 to create an early-warning detection system" to prevent more attacks.
Tellingly, Moschella wrote that the Foreign Intelligence Surveillance Act, which allows the government to obtain warrants to conduct domestic eavesdropping or wiretapping, "could not have provided the speed and agility required for the early-warning detection system."
The administration hasn't elaborated on why the system needs to operate independently of FISA, but officials may believe that it cannot meet the law's minimum threshold for surveillance, which requires a probable cause that the target is a terrorist, said Steven Aftergood, an expert on intelligence and government secrecy with the Federation of American Scientists.
This information should have raised the hackles of the Democrats. To her credit Nancy Pelosi asked for clarification of just what Hayden meant by his expanded view of surveillance. The portions of his response that have been declassified do not reveal anything about the NSA surveillance program and it is very possible that he was stonewalling the request, as this administration is wont to do. However, once the red flag was raised, the Democrats should have been relentless in their pursuit of the truth. There should have been more than one letter as proof that the Democrats did everything in their power to learn what the NSA was doing and whether it was legal or not.
None of this changes the fact that the President's actions are illegal whether it's called domestic spying or terrorist surveillance. Providing a good reason for doing the wrong thing does not excuse the crime. It is especially important in this case to get things right because we will be setting a dangerous precedent if we allow the White House to exercise authority not provided by the Constitution or the Congress.
Regardless of what the President or the Attorney General have said, there are many congressmen and senators and a great number of American citizens who believe that the President has exceeded his authority. Former Senator Tom Daschle, who sponsored this resolution, and who should know best what authority Congress intended to grant the President had the following to say from his WaPo article:
As Senate majority leader at the time, I helped negotiate that law with the White House counsel's office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.
This is a case in which the Democrats are right. The President did exceed his authority. And I think that point has been made. We are not going to make a convincing argument for impeaching the President though. Senator Arlen Specter has already reversed himself and now says that Bush "acted in good faith". Support among Republicans will continue to erode, especially as the Rove spin machine kicks into high gear and starts putting pressure on the Republican faithful to fall in line. The American public will swallow the Republican talking points and we will look like we are trying to prevent the President from doing his job of keeping America safe.
We need to make it clear that the Democrats are committed to keeping America safe and to safe-guarding our rights. We support the President's goal of keeping terrorists under surveillance and we want to work with him and the Republicans to create legislation that will allow this to be done while still protecting the rights of American citizens. Obviously, there are differences of opinion on what powers the current resolution gives the President. Therefore, a new resolution needs to be crafted that specifically details those powers. In the meantime, Congress can temporarily authorize monitoring of communications with at least one point overseas, provided we have reason to believe al Quaida is involved. The President claims that this is the only type of monitoring being done now and most Americans would not have a problem with this. We should also push for more congressional oversight of the NSA surveillance programs just to make sure that American freedoms are not being compromised. This would be more of an inspections role rather than any direct control of NSA operations. I think we could all live with this and avoid a nasty fight that I think the Democrats would get the worse of.