Reprogramming the Infinite Loop: The NSA Spying Debate

It has now been three months since the Bush administration reluctantly admitted that it has been conducting warrantless surveillance on American citizens, despite the explicit prohibitions of the Foreign Intelligence Surveillance Act (FISA). Since then, the public has been treated to endless and, unfortunately, fruitless discussion about the issue. We have experts and scholars earnestly responding, and responding yet again, to administration arguments (both legal and factual) that can best be described as protean, internally inconsistent, and occasionally evanescent. We have the administration refusing to explain the program, but enjoining everyone to "trust them." And we have legislators trying to "fix" a problem that is undefined by proposing new laws that the administration doesn't want. We are, in short, trapped in an infinite loop.

In computer parlance, an infinite loop is a coding sequence that has no effective exit because of a flaw in the program. It's a bit like trying to call your HMO with what you think is the flu and having a recording guide you through a series of numbers that land you back at the initial message welcoming you to the system. Of course, you can end that phone loop simply by hanging up. The only way to permanently extract yourself from an infinite loop in a computer program, however, is to find the programming defect. Press the refresh key, check the power chord, buy a new computer -- none of these fixes will work as long as the fundamental flaw in the program is ignored.

If you have any doubt that the NSA spying "debate" is trapped in an infinite loop, you need only review two pieces of evidence. The first, which we'll call "Exhibit A," is an article, dated March 8, 2006, entitled "Gonzales: NSA Program Doesn't Need a Law." Aha, you say, a mere headline. But this is what the article says: "The Attorney General made clear Wednesday, March 8, that the White House is not seeking congressional action to inscribe the National Security Agency's monitoring into U.S. law."

How, you wonder, could that be true? Since December, the President, White House Press Secretary Scott McClellan, and Secretary of State Condoleezza Rice, among others, have said that FISA is outdated, not sufficiently agile, ineffective against terrorists, and too paper-intensive. Perhaps the AP reporter misinterpreted Gonzales' remarks…

I now refer you to Exhibit B -- a February 28, 2006 letter from Alberto Gonzales to Arlen Specter, Chairman of the Senate Judiciary Committee. In answer to a question about what changes to FISA are needed, Gonzales explicitly says, "The Administration believes it is unnecessary to amend FISA" to accommodate the spying program.

Let's review. Members of the Bush administration have admitted that they routinely ignore FISA. That does not mean, however, that they believe there's anything wrong with the law. On the contrary, the Bush administration does not think the law needs to be changed; nor does it even want the law to be changed. So every time you hear a Bush team member mention problems with FISA, all you need to do is think like a lawyer and the terms "objection.. irrelevant" will come to mind. Under the circumstances, why should Congress waste one more minute trying to amend a law the administration has no desire to see amended?

Unfortunately, disposing of the issue of changing the FISA law just brings us back to the point where the administration confessed to conducting electronic intercepts in the first place without following the procedures set forth in that law -- in, to be exact, FISA's criminal penalty provision (Title 18, United States Code, Section 1809). In other words, it brings us back to the matter of a crime having been committed. On this, as we loop upwards again, the administration claims two defenses -- one based on its reading of the FISA statute; the other on its interpretation of the Constitution.