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House Press Secretary Scott McClellan, and Secretary of State Condoleezza Rice, among others, have said that FISA is outdated, not sufficiently agile, ineffective against terrorists, and too paper-intensive.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.
The Statutory Argument: That Pesky “After-the-Fact” Feeling
The statutory argument is that the FISA law allows an exception to its procedures if the surveillance in question is otherwise “authorized by statute.” The administration argues that the September 18, 2001 congressional Authorization to Use Military Force (“AUMF”) against those responsible for the September 11 attacks is, in fact, a statute that satisfies this provision. However, not even the Republicans on the Senate Judiciary Committee consider this to be a reasonable argument. As Arlen Specter said during the February 6 NSA wiretap hearings, “[the AUMF argument] just defies logic and plain English.” In the same hearing, South Carolina’s Senator Lindsay Graham told Gonzales that the administration’s statutory argument was “very dangerous.”
One other small problem: The administration’s statutory argument appears to have been devised after the NSA program began. As it happens, it is premised in large part on the analysis of a Supreme Court detainee case (Hamdi v. United States) that was not even decided until 2004. Also, though the Department of Justice’s Office of Legal Counsel has released an unsigned 42-page paper, dated January 20, 2006, which purports to set out the administration’s legal analysis, Attorney General Gonzales has refused to provide the Senate Judiciary Committee with any memos setting forth a legal analysis of the NSA surveillance program written before it began in October 2001. As Senator Patrick Leahy noted, Gonzales has even refused to say when the statutory argument was first devised.
However, what Gonzales has acknowledged is that the administration’s legal analysis has “evolved over time.” This is a damning, if not entirely surprising, admission. The Office of Legal Counsel is charged with providing objective and balanced advice to the President before he takes action; it is not supposed to be a firm of defense lawyers dedicated to crafting justifications in hindsight.
Gonzales’ cavalier statement is corroborated by recently disclosed emails, sent in December and January, by David Kris, a former Associate Deputy Attorney General, to the Office of Legal Counsel lawyers who were preparing the written justification for the NSA spying program. After reviewing the draft white paper, Kris commented that the AUMF statutory argument had a “slightly after-the-fact feeling” to it. He was perfectly positioned to make this observation because he had been in charge of national security matters at the Justice Department from 2000 to 2003. As his emails and a lengthy January 25, 2006 memo that he provided to journalists make clear, Kris knew nothing whatsoever about the NSA surveillance program even though, when it began, he headed the legal department assigned to its oversight. As to the administration’s statutory argument in support of the NSA operation, Kris, an expert on FISA, was clearly not persuaded.
The Constitutional Argument: Those Pesky Other Branches of Government
Unfortunately, the nearly universal conclusion that the administration’s statutory argument is meritless does not extricate us from the loop for a simple reason. Despite the administration’s quite successful attempt to suggest otherwise, it is clear that the statutory argument has never been its principal rationale for the warrantless surveillance program. Its main justification has always been the constitutional argument that, under Article II, and as commander-in-chief, the President has the authority to prevent further attacks by taking whatever “military” actions he deems necessary to achieve that end. Although this argument enjoys the support of a few exceedingly conservative law professors, it has been brilliantly refuted, time and again, by the majority of legal scholars.
At bottom, though, the problem raised by this argument is more political than legal. The administration began making the claim to an unfettered commander-in-chief-style presidency in a rather low-key way — as if it were a given — in late 2001, after a few brave souls had dared to question the conditions under which it was detaining enemy combatants. It has repeated it like a mantra ever since, accompanied by the refrain that we are at war — a war not specifically in Iraq or Afghanistan, but of a long-term global nature and on terrorism.
Only in June 2004 did the public learn that this argument stemmed from the legal and political theories of a young Justice Department lawyer, John Yoo. On September 25, 2001, he wrote in a memo to the President that, even if the congressional Authorization to Use Military Force had never existed, no statute passed by Congress “can place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response.”
Astoundingly, it is the absolutely radical theory of presidential powers in this memo, clearly espoused by the President, the Vice President, and their senior staff, but written by an extreme conservative whose views in the now infamous “torture memo” have largely been dismissed by those inside and outside the administration, that is the fundamental flaw in our “program” for national debate. It is this theory that has trapped us in an infinite loop of discussion about issues that rational persons of good faith should be able to resolve: the obviously illegal surveillance of American citizens; prolonged detentions without due process; renditions to countries known for their abysmal treatment of prisoners; and, most shamefully, our own adoption of torture. But until we “debug” this program by fearlessly and unflinchingly addressing the President’s theory of executive power, and its unstated false premises — especially the claim that we are at war by virtue of an undeclared, undefined, and unending “war on terror” — we will all continually find ourselves at different places on the same infinite loop.
It should not require courage to insist on an honest debate about issues that are substantial and serious. It should not require courage to stand firm in the face of juvenile personal attacks on one‘s allegiance to the United States. But, of course, it does. For that type of courage, we need patriots, not politicians — strength, not just strategy. So far, in the Senate, Wisconsin’s Russ Feingold, California’s Barbara Boxer, and Iowa’s Tom Harkin have shown themselves to be patriots in calling for censure of the President as a result of his blatantly illegal NSA surveillance operation. That is a total of three. There must be more. We look forward to hearing from you soon.
Elizabeth de la Vega is a former federal prosecutor with more than 20 years of experience. During her tenure, she was a member of the Organized Crime Strike Force and Chief of the San Jose Branch of the U.S. Attorney’s Office for the Northern District of California. Her pieces have appeared in The Nation magazine, the L.A. Times, Salon, and Mother Jones. She writes regularly for TomDispatch. She may be contacted at ElizabethdelaVega@Verizon.net.
Copyright 2006 Elizabeth de la Vega
This piece appeared first, with a short introduction by Tom Engelhardt, at Tomdispatch.com.