December 22, 2005
The talk is already about high crimes, about impeachment. It is about a strong constitution versus a strong president, safety versus civil liberties. But the important thing here is not to get caught up in tantalizing blue-sky scenarios before we address some key issues that we need to understand if we are ever to get our democracy back on track.
The Bush administration blew away opposition to the invasion of Iraq in part because it was able to keep shifting the debate from one big idea to another -- without having to provide the credible facts that would prove that anything it said was actually true.
So let's talk about facts. And keep the discussion on them.
-What exactly was the problem with the prior set-up whereby the administration had to clear domestic eavesdropping cases with a special Foreign Intelligence Surveillance Court within 72 hours of launching said surveillance? In other words, the government can eavesdrop first and get a warrant retroactively. Under what conditions was that not sufficient to guard our national security?
-Given that the special court apparently approved tens of thousands of requests for secret wiretapping in past years and rejected just four, how can administration sources be claiming that they couldn't go to the court because the evidence wouldn't have passed muster? If it wouldn't pass muster, what kind of evidence was it? That people inside the United States received potentially benign communications from foreigners identified as not benign? What's our policy on such things? (If, indeed, our surveillance apparatus had flagged communications from terrorism suspects abroad with people inside the United States, then, presumably, the special court would have agreed that it was justified to trace communications from those inside this country back out again.)
There's a separate issue: who eavesdrops domestically? The NSA is not supposed to conduct domestic surveillance -- that should properly be the province of the FBI. Why could information from NSA intercepts abroad not have been efficiently passed to the FBI for immediate further domestic intelligence, with the special court being notified within the mandated 72 hours? Was it a technological thing -- only the NSA had the electronic chops to track so many real-time chats? Or was someone afraid that the FBI was too leak-prone to be entrusted with what might very well turn out to be illegal acts? (It has been reported that some NSA operatives were nervous about having to perform such acts.)
We don't know any answers to any of this because everything is secret. Only a handful of senior congressmembers get 'briefed' at all, but in truth they understand little of what they're being told, lack any means of independently verifying it, and (according to Sen. Jay Rockefeller of West Virginia) cannot complain publicly if they don't like what they're hearing.
What this affair is really about is the government's fear of sharing basic facts about how it operates -- and how it spends billions of tax dollars each year ostensibly to protect us. The boilerplate claims that the mere revelation of general policies and broad outlines of intelligence management will aid the enemy are patently ridiculous. With the Soviet bloc gone, there is no commensurate establishment on the other side that is plotting out sophisticated moves based on knowing the total size of the US intelligence budget, or on understanding information-sharing between agencies. I've yet to see evidence or even good argument that Osama bin Laden has this capability -- or even any interest in it. He's got other things to do.
Our government needs to start sharing a whole lot more facts with us. After all -- and this is worth reminding ourselves -- it is our country. And the government works for us.