Sunday, January 22, 2006

Warrantless Wiretap Entertainment

By Melissa Boyle Mahle

The debate this past week over warrantless wiretaps reminded me of World Wrestling Entertainment, shocking at first, boring as the contrived moves go on and on and ultimately predictable in results. The Al Gore Half Nelson and the White House Neckbreaker demonstrated that the issue will remain a political free-for-all, but added little to the substantive debate.

There was some informed discussion on the topic, however. The Congressional Research Service—a non-partisan research agency that informs Congress on issues of legislative interest—issued two reports that deserve close scrutiny. The first report, released on 5 January 2006, assessed presidential authority to conduct warrantless electronic surveillance to gather foreign intelligence information. The second report, released on 18 January 2006, assessed statutory procedures under which Congress is to be informed of US intelligence activities, including covert action. In a nutshell, the first found the practice in breach of the FISA law. The second report found that NSA and the White House did not meet the requirement of keeping the intelligence committees “fully and currently informed” of the domestic surveillance effort.

The first report, a slow read for a non-lawyer, made a pretty compelling argument for illegality. The second report left me laughing. The “fully and currently informed” language is a joke and has always been a joke. It is technically impossible for the intelligence community (IC) to meet this requirement because short of giving every member of the oversight committees unrestricted access to all of the computer systems in the IC, there are not enough briefers or congressional staffers and hours in the day to tell Congress absolutely everything the IC does on a daily basis.

The “fully and currently informed” language has historically been used as a spanking paddle against members of the IC when one agency or another does something that someone on the oversight committee does not like. In the 1970s, the language crept into existence, first being non-binding requirement for dealing with the newly established oversight committees. The Intelligence Oversight Act of 1980 made the “fully and currently informed” language a legal obligation for the IC—this came after the Church Committee investigation. Subsequently, the language has been invoked as Congress investigates IC activities, as a tsk-tsk for not providing details in the nth degree on an operation under investigation.

A more meaty part of the second report is the criticism that the White House and NSA restricted oversight by limiting the briefings to the “Gang of Eight”. Doing this made the whole oversight process just process, devoid of any added value. What I found amazing is not that the White House, NSA or DCI tried to restrict access to the program, but that the “Gang of Eight” agreed to the terms. It shows that they intrinsically acknowledge that oversight is an empty process.

The other interesting commentary on the topic came from Victoria Toensing in the Wall Street Journal on 19 January, entitled “Terrorists on Tap”. In it, Toensing argues that FISA is broken, has been broken and will remain broken. Unfortunately, her experience with FISA predates 9/11 as do all the examples used to support her argument. Nonetheless, she hits the nail on the head in the following passage:

“The overarching problem is that FISA, written in 1978, is technologically antediluvian. It was drafted by legislators who had no concept of how terrorists could communicate in the 21st century or the technology that would be invented to intercept those communications. The rules regulating the acquisition of foreign intelligence communications were drafted when the targets to be monitored had one telephone number per residence and all the phones were plugged into the wall. Critics like Al Gore and especially critics in Congress, rather than carp, should address the gaps created by a law that governs peacetime communications-monitoring but does not address computers, cell phones or fiber optics in the midst of war.”

Having reached this somewhat obvious conclusion, Toensing then completely shoots herself in the foot by arguing that the President should be excused for not asking Congress in 2001 to amend FISA because it would have led to a public debate on how the US monitors terrorist suspects. She completely ignores the fact that there was already a public debate on the shortcomings of our counterterrorism efforts as a consequence of 9/11. That public debate was in the form of the 9/11 Commission and the Joint Congressional inquiry—both of which discusses explicitly the limitations on NSA authorities to collect intelligence within the US.

Toensing also expresses the fear that if the President asks for the law to be modified, Congress will make a political issue out of it and the IC will come away with less ability to monitor. In other words, working within the democratic system is too risky; better not to ask permission and deny or make counter accusations later. Hummm.

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