Press Conference of the President
Q: On the NSA eavesdropping program, there seems to be growing momentum in Congress to either modify the existing law or write some new law that would give you the latitude to do this, and at the same time, ensure that people's civil liberties are protected. Would you be resistant to the notion of new laws if Congress were to give you what you need to conduct these operations?
An interesting question that raises some important points: is the current law so restrictive that it requires amendment? The FBI can commence a wiretap instantly, as long as it goes to the FISA court for an order within three days, so the administration's protests that the current law slows down their response doesn't appear to make sense.
Perhaps, then, the White House's problem with obeying current law turns on the requirements for a FISA court order. As it stands, the FBI (consulting with the NSA and CIA) has to show probable cause to suspect a wiretap target is involved in terrorist activity. Principal Deputy Director of National Intelligence Gen Hayden has indicated the secret program runs at a much lower threshold: reasonable basis. It's not hair-splitting to guess that when the FBI, NSA, CIA, and DoJ (all parts of the unitary executive) get together to decide reasonable basis, it would largely conform to the White House's worldview.
Just to put this in some context: in 2004, the FISA court appeared to rubber stamp all but 94 of the FBI's wiretap requests. In other words, the government was required to do more than the bare minimum work (three pieces of paperwork) required by the law a measly 5% of the time. Given the high success rate, and the fact that the FBI essentially has a three day grace period to begin to bother with the administrative details, it would seem that the White House isn't overly-constrained by current legislation.
Furthermore, and perhaps most importantly, it seems remarkable that legislators are discussing a post facto
legalization of the White House's domestic spying program. Their first instinct should be to establish clearly that their constituents, US citizens, are explicitly protected from secret government spying. Instead, there's serious discussion of aiding the executive in lowering the bar from independent approval (if not determination) of probable cause, even in secret, and without recourse, to something far less onerous, and entirely at the discretion of one branch of government. Congress, in other words, seems to resent being left out of the loop more than it does the potential unconstitutional surveillance of American citizens.
What's more frustrating is that it is almost impossible to determine definitively what's in the scope of this spying program. It most surely is not the simplistic "if al Qaeda's calling, we want to listen," line we're being fed by the administration's public relations team, if for no other reason than it would be technically impossible to pinpoint a single communication event with such accuracy. No, a reasonable assumption would be that the surveillance is more like a roaming dragnet, intercepting all international communications between a target and their correspondents. Are all conversations kept and mined? What's the threshold for determining if a conversation is material to an investigation? How long are conversations kept? Are conversations from one US area code to another always off-limits? Answers to these questions would be helpful.
Unfortunately, nobody's going to get them. It appears that the administration's stance on this, as it is with almost any decisions the president chooses to make, is that the details are secret. To discuss this spying program in any meaningful way borders on treason:
THE PRESIDENT: The terrorist surveillance program is necessary to protect America from attack. I asked the very questions you asked, John, when we first got going. Let me tell you exactly how this happened. Right after September the 11th, I said to the people, what can we do -- can we do more -- "the people" being the operators, a guy like Mike Hayden -- can we do more to protect the people?
Is it a bad thing that it isn't clear whether he asked Hayden how to protect American citizens or how to protect "the operators?"
There's going to be a lot of investigation and a lot of discussion about connecting dots and we have a responsibility to protect the people, so let's make sure we connect the dots. And so he came forward with this program. In other words, it wasn't designed in the White House, it was designed where you expect it to be designed, in the NSA.
Given the way he threw the words "the people" around, I guess it's fair to say that this program was designed by "the people." Curious, too, that the president believes that telling us the NSA designed this program is somehow more comforting than having the White House do so. Color me paranoid, but having your military spies design a domestic spying program isn't warming the cockles of my heart.
Secondly, I said, before we do anything, I want to make sure it's legal. And so we had our lawyers look at it -- and as part of the debate, discussion with the American people as to the legality of the program.
Whoa, almost missed that one: discussion with the American people? About this? Was I asleep for that debate? Or, by the American people, do you think the president means "the people" (see above
Now, my concern has always been that in an attempt to try to pass a law on something that's already legal, we'll show the enemy what we're doing. And we have briefed Congress -- members of Congress. We'll continue to do that, but it's important for people to understand that this program is so sensitive and so important, that if information gets out to how it's -- how we do it, or how we operate, it will help the enemy. And so, of course, we'll listen to ideas. But, John, I want to make sure that people understand that if it -- if the attempt to write law makes this program -- is likely to expose the nature of the program, I'll resist it. And I think the American people understand that. Why tell the enemy what we're doing if the program is necessary to protect us from the enemy? And it is. And it's legal. And we'll continue to brief Congress. And we review it a lot, and we review not only at the Justice Department, but with a good legal staff inside NSA. [The added emphasis is mine]
Did you catch that? Tucked right behind another "trust me, it's legal," we're told that to even discuss the matter in any detail aids the enemy. Possibly even comforts the enemy. And, trust me it's legal. At least, that's what the guys who designed and run this little operation are telling me.