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NSA Kabuki Theatre: Though Same-Party Oversight Led to Weak Hearings on NSA Wiretapping, Some Important Facts Did Come Through


Thursday, Feb. 09, 2006

In 1993, during President Clinton's first term, the Democrat-controlled House held a hearing on the Waco Branch Davidian tragedy, which had resulted in the death of several dozen men, women and children. The hearing, was a farce: a virtual lovefest, during which members of the Clinton Administration responded to softball questions from their colleagues in the House with superficial answers, and Republican queries were ignored or glossed over with disdain, if not outright contempt.

More than a dozen years later, with the White House and Congress once again in the grip of a single Party, and another matter of great seriousness facing the Congress - NSA spying on American citizens -- where are we?

Thus far, if it's not "déjà vu, all over again," it's pretty darn close.

The Attorney General's Testimony: Unsworn and Drastically Limited

We have not just allegations, but proud admissions by the Republican Administration of George W. Bush that it has been conducting surreptitious electronic surveillance of American citizens, without court approval, in obvious contravention of an explicit federal law to the contrary.

We have the House somnambulant as usual; and the Senate conducting an event that is billed as an "oversight hearing." Unfortunately, what passes for oversight seems to be inviting the President's lawyer, that is, the Attorney General, to testify, thereby offering him a forum from which to defend and justify the Administration's actions in conducting extra-judicial spying on American citizens.

Attorney General Gonzales appeared before the Senate Judiciary Committee on February 6. If there was any doubt in his mind that he might be in trouble, it was dispelled at the very start -- when Chairman Specter, backed by his Republican majority colleagues, refused to swear the witness.

While not all witnesses who appear before the Committee are sworn, in similar hearings in the past, including Mr. Gonzales' own confirmation hearings and prior appearances by Janet Reno, President Clinton's Attorney General, they have been. Reportedly, the White House insisted on not having Attorney General Gonzalez sworn as the price for making him available as a witness.

The Republican Majority: Protecting the A.G.

Granted, the Attorney General had to suffer through several hours of often heated and sarcastic questions and comments by frustrated Democrats on the Committee. Yet the majority always bailed him out with softball questions, and interpretive comments that appeared to have been written by the Attorney General's own ghostwriters.

As the day progressed, the Kabuki played itself out as in hearings, years, and Congresses past. The opposition party -- now, the Democrats -- attempted valiantly to pierce the armor the party in power had provided the recalcitrant witness. But that armor proved hardy: Gonzales relied on a repetitive recitation of what has become this Administration's corollary to the Fifth Amendment right against self incrimination: a refusal to answer questions on the grounds that to do so would "harm national security."

Absurdly, Gonzales refused to even discuss the law governing the federal government's use of electronic surveillance to gather intelligence. Apparently, such a discussion would, in the world envisioned by the Bush Administration, impart critical information to al Qaeda operatives hanging on every word uttered by the titular head of our Department of Justice; information available nowhere else, and information which would immediately enable the terrorists to destroy our very way of life.

Republicans should not have indulged this refusal to answer. Yet Senator Specter, who himself has raised serious questions about the NSA spying, refused to aid the Democrats in their dauntless but doomed effort to discover exactly what the NSA has been up to, and just how much further the President intended, and now intends, to pursue his "unitary executive" theory of single-branch government.

The Information the Hearings Did Unearth: A Troubling Start

Still, some Democrat jabs found their mark and, while not body blows, did perhaps cause the witness to stagger. Information thus elicited can be built on, to aid in further efforts to discover the truth.

For example, if one does a bit of reading between the lines, it now appears established that the NSA spying program has resulted in huge quantities of information of dubious value - information that seems to have netted nary a single arrest. Thus, the argument that the program sacrificed crucial rights, with no gain in security, now has some factual ammunition.

The argument that the Attorney General's reading of the 1978 Foreign Intelligence Surveillance Act (FISA) is just plain wrong, also gained still more ammunition.

The language of the statute itself ought to be clear enough. But in case anyone was still in doubt, discussions at the hearing about the legislative history of FISA reminded us that no less a revered and respected former federal judge and attorney general than Griffin Bell, fully understood that the FISA law was indeed intended to be the sole vehicle whereby the federal government is authorized to conduct surreptitious electronic surveillance to collect foreign intelligence of American citizens within the United States.

As a result of the hearings, we now have a current and well-footnoted compendium of support for what was heretofore, at least in pre-9/11 days, the generally accepted view that such surveillance plainly required prior judicial approval.

Even the NSA Itself Has Admitted that FISA Compliance Is Necessary

In fact, in April 2000, General Michael Hayden, then-director of NSA testified as much before a House Committee. Hayden stated that in the limited circumstance in which the NSA might go so far as to gather intelligence on an American citizen, if that citizen "is in the United States, [the government] must have a court order before [the government] initiates any collection against him or her" (Emphases added).

I know precisely what Gen. Hayden testified to that day in 2000: I was there; I had testified shortly before him. FISA, the law prompting that admission by the head of the NSA then, is in all its operative parts, the same law, reflecting the same requirements, that prevails today. Only the job held by its then-advocate has changed. (Hayden is now, along with an additional star on his shoulders, the Deputy to intelligence czar John Negroponte),

The "Unitary Executive" Theory:

Of course, such authority, not to mention the clear language of the FISA statute itself, means naught if this Administration is ultimately allowed by congressional and judicial inaction to operate according to the terms of its new North Star: "The Unitary Executive."

This breathtakingly expansive theory of governance was first tested by early Twentieth Century Presidents Theodore Roosevelt and Woodrow Wilson, and now is being refined and played in spades by the Twenty-First Century's first president, George W. Bush. According to the theory, a president can do whatever a president decides he must do, since he and he alone wears the hat of "commander in chief," a role the president alone decides when to assume and for how long.

I suppose, according to that scenario, the citizenry ought to be thankful that all this President wants to do is spy on a few of us. But then again, don't forget that the Attorney General, during his testimony, refused to rule out other measures the "unitary executive" might want to take to make us even "safer" from tyranny and harm.

Bob Barr served in the U.S. House of Representatives from January 1995 to January 2003. He was a senior member of the Judiciary Committee. He now practices law, writes extensively, works with the American Conservative Union, and consults on privacy matters with the ACLU.

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