A high-ranking intelligence official with firsthand knowledge said in an interview yesterday that Vice President Cheney, then-Director of Central Intelligence George J. Tenet and Michael V. Hayden, then a lieutenant general and director of the National Security Agency, briefed four key members of Congress about the NSA's new domestic surveillance on Oct. 25, 2001, and Nov. 14, 2001, shortly after Bush signed a highly classified directive that eliminated some restrictions on eavesdropping against U.S. citizens and permanent residents.
In describing the briefings, administration officials made clear that Cheney was announcing a decision, not asking permission from Congress. How much the legislators learned is in dispute.
Former senator Bob Graham (D-Fla.), who chaired the Senate intelligence committee and is the only participant thus far to describe the meetings extensively and on the record, said in interviews Friday night and yesterday that he remembers "no discussion about expanding [NSA eavesdropping] to include conversations of U.S. citizens or conversations that originated or ended in the United States" -- and no mention of the president's intent to bypass the Foreign Intelligence Surveillance Court.
"I came out of the room with the full sense that we were dealing with a change in technology but not policy," Graham said, with new opportunities to intercept overseas calls that passed through U.S. switches. He believed eavesdropping would continue to be limited to "calls that initiated outside the United States, had a destination outside the United States but that transferred through a U.S.-based communications system."
Graham said the latest disclosures suggest that the president decided to go "beyond foreign communications to using this as a pretext for listening to U.S. citizens' communications. There was no discussion of anything like that in the meeting with Cheney."
The high-ranking intelligence official, who spoke with White House permission but said he was not authorized to be identified by name, said Graham is "misremembering the briefings," which in fact were "very, very comprehensive." The official declined to describe any of the substance of the meetings, but said they were intended "to make sure the Hill knows this program in its entirety, in order to never, ever be faced with the circumstance that someone says, 'I was briefed on this but I had no idea that -- ' and you can fill in the rest."
These "intelligence officials" met with more members of Congress then Graham, but it's clearly unusual that Graham would not remember something indicating that the rules for whether Americans can be spied on were being eased or re-written. I have a feeling that if this change was discussed at all, it was discussed briefly and disguised in legalese, to make the change seem as unremarkable as possible and pre-empt any challenge from Congress.
It's also clear that there is a considerable debate over whether Bush acted beyond his constitutional authority, violated the constitutional rights of American citizens, or even committed what could in fact be a violation of federal law. U.S. Attorney General Alberto Gonzalez offered the administration's justifications for claiming Bush had the authority to authorizes such warrantless eavesdropping. The argument is a bit convulted, and requires close reading:
In asserting the legality of the program, Bush cited his power under Article II of the Constitution as well as the resolution authorizing force passed by Congress after the Sept. 11 attacks. The resolution never mentions such surveillance, but Attorney General Alberto R. Gonzales said it is implicit and cited last year's Supreme Court decision in Hamdi vs. Rumsfeld , which found that the force resolution effectively authorized Bush to detain U.S. citizens indefinitely as enemy combatants. But the same ruling held that detainees are entitled to challenge their imprisonment in court.
Bush and Gonzales maintained that the program is not unchecked because select congressional leaders have been briefed on it more than dozen times. But several of those who received classified briefings objected yesterday that it hardly constituted oversight. In fact, those lawmakers said they were sworn to secrecy, and were barred from disclosing the program even to their colleagues and staff, and therefore unable to block the president's actions.
Unless you know something about the Hamdi decision, you might not know the legal reasoning behind Bush and Gonzalez's argument. In the case the Supreme Court-in a decision that essentially split the difference between constitutional rights and the President's war time powers-held that the resolution authorizing the use of force in Afghanistan granted the President the authority to hold American citizens as detainees as part of the "war on terror", but at the same time requiring the detainee be given the opportunity to challenge their status. But the authorization was linked back to Congressional requirement that all detentions by the United States to be pursuant to an act of Congress; the Court found that the authorization was just such an act, and held that Congress had in fact granted Bush just such authority to detain American citizens as combatents. The decision was 5-4, and it was rightly excoriated by Justice Scalia, who rejected such a liberal reading of the authorization which did not specifically address detention but gave the President the authority necessary to conduct the war in Afghanistan. But it stretches such a reading to incredulity to think that the authorization to use force could in any way justify normally illegal intelligence gathering against United States citizens. The Supreme Court could claim some coherancy to their ruling; after all, they were merely speaking of the detention of a person with suspected links to Al Qaeda, which the authorization clearly dealt with. But waht Bush and Gonzalez essentially claim here is that the US government may spy on Americans, circumventing well-established 4th amendment protections, based on a resolution to use force that was clearly designed to be limited to active war-making against terrorists, the detention of which is incident to such war-making. I very seriously doubt that of all the justices sitting on the Supreme Court, only one or two might allows for such a broad reading, as to construe the authorization in such a way is to say that essentially Bush has the right to act in any way he himself deems appropriate, without oversight.
As for the matter of a Congressional check on power. That's simply absurd, and no interpretation of their actions can support such a reading. Congress has no check where only a dozen or so of its members know of a program, are given no opportunity to participate in the creation of the program, no means to disapprove of the program, and are sworn to secrecy. Whatever the rationalization, it is clear that Bush subverted both Congress (by requiring no act granting him this authority and ignoring the provisions of the Federal Intellience Service Act of 1974) and the judiciary (by ignoring the court created by the act to oversee domestic intelligence gathering against American citizens) by granting sole authority to a few members of the executive to oversee a program which clearly violates constitutional protections.
As I stated before, Bush has once again over-played his hand. Only I suspect the fall-out is going to be much worse this time around. Already there is condemnation of this program on both the left and the right, and the word impeachment is no longer being whispered as quietly as it once was. Only time will tell what the ultimate consequences of Bush's act will be, but it's my opinion that it will be unlike anything we've seen thus far.
Update: If you'd like some excellent summations of the legal and political issues at stake here, I suggest visiting Kevin Drum at the Washington Monthly blog, here...and here.
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