I notice the Los Angeles Times and other newspapers are using carefully cherry-picked “experts” from the ranks of the ACLU and the former Clinton administration to provide comment on the president authorizing the NSA to do what the NSA does, i.e., spy, among other things. Many of these “experts” — joined by a few uninformed, media-obsessed politicians like Arlen Specter and Russ Feingold — have claimed shock at the eavesdropping and have either suggested or pronounced the president’s acts illegal or even unconstitutional.
Now, what exactly do we know from these hysterical reports? Not very much. As I wrote yesterday, the FISA permits the government to monitor foreign communications, even if they are with U.S. citizens. A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power. Today’s Los Angeles Times writes that the program “was designed to enable the NSA to monitor communications between Americans in the U.S. and people overseas suspected of having ties to terrorist networks.” Fine. That’s not illegal or even unusual. And these “experts” know it. But the truth is that we have no idea of the contents of the president’s executive order and, therefore, we have no idea what conduct we’re supposed to be offended about. Perhaps the executive order expanded the authority of the NSA or expedited the processing of wiretaps. We just don’t know. Unfortunately, the administration’s hands are tied for while revealing the executive order’s contents to the public might well demonstrate the appropriateness and legality of its conduct, thereby deflating the effort to create a scandal, it may well be too damaging to ongoing operations.
But clearly many members of Congress who have not spoken on the record do know about the program. As the president said today, Congress has been consulted, and often. It’s remarkable that the New York Times, Los Angeles Times, and the Associated Press failed to uncover this fact. Indeed, they did the opposite. In addition to cherry-picking experts from the ACLU and the Clinton administration, the media are cherry-picking from their favorite politicians to give the opposite impression, i.e., that Congress was in the dark. And who better to react hysterically to hysterical reporting than Arlen Specter. The fact that Specter may not have been consulted, as he doesn’t serve on the Senate Intelligence Committee, is of no consequence, except to Specter. He might want to ask his colleagues on the Senate Intelligence Committee what they know before stomping all over their congressional-oversight turf. But for a brief mention of Jay Rockefeller’s knowledge of the program in yesterday’s New York Times, we’ve hear nothing about of from the relevant committee members. Indeed, their silence, if anything, suggests to me their likely awareness of the program, consistent with the president’s statement that Congress was aware.
What is clear is that this is not some Watergate-type rogue operation, as seemingly hoped by some. In addition to repeated congressional notification, the program has been heavily lawyered by multiple agencies, including the Department of Justice and NSA and White House, and is regularly reviewed. Attorney General Alberto Gonzales and Secretary of State Condi Rice have both insisted that program is legal. The fact that some might disagree with whatever legal advice and conclusions the president has received does not make them right or the program illegal. But at this point, we, the public, don’t really know what these news stories are really about, do we?