Political Views,

De la Vega on Bush's Infinite Constitutional Loop
By Tom Engelhardt MWC Editor At Large

Since today's dispatch is by a former federal prosecutor, let me suggest a small "law" of my own, one fit for the present moment: When it comes to the Bush administration, whatever the subject may be and however bad you think things are, they're going to be at least several fallback positions worse than whatever top administration officials may be fessing up to at any given moment. This, after all, is the administration of adamant denials, followed by forceful non-confessions, followed by proud statements, followed by limited hang-outs, followed by even more grudging, only slightly less limited hang-outs. In that spirit, without a bit of insider information but with recent history as my guide and with consummate confidence, let me assure you that the NSA warrantless surveillance operation Elizabeth de la Vega takes up below will turn out to be anything but the limited program described in the first set of Bush administration fall-back positions. It will be a miracle if it has not swept up near-infinite American conversations, startling numbers of which won't have been conducted with overseas parties (and don't even get me started on the subject of the secret data-mining of our phone and email life); and surely, before we're done, it will turn out that this particular NSA surveillance program is only the tip of the administration's surveillance iceberg. Where the NSA already is, can the Pentagon or the CIA be far behind? Not likely.

Now, consider the infinite loop this President and his top advisors have set us journeying along, as de la Vega lays it out. Tom

Reprogramming the Infinite Loop

The NSA Spying Debate
By Elizabeth de la Vega

It has now been three months since the Bush administration reluctantly admitted that it has been conducting warrantless surveillance on American citizens, despite the explicit prohibitions of the Foreign Intelligence Surveillance Act (FISA). Since then, the public has been treated to endless and, unfortunately, fruitless discussion about the issue. We have experts and scholars earnestly responding, and responding yet again, to administration arguments (both legal and factual) that can best be described as protean, internally inconsistent, and occasionally evanescent. We have the administration refusing to explain the program, but enjoining everyone to "trust them." And we have legislators trying to "fix" a problem that is undefined by proposing new laws that the administration doesn't want. We are, in short, trapped in an infinite loop.

We have the administration refusing to explain the program, but enjoining everyone to "trust them." And we have legislators trying to "fix" a problem that is undefined by proposing new laws that the administration doesn't want. We are, in short, trapped in an infinite loop.

In computer parlance, an infinite loop is a coding sequence that has no effective exit because of a flaw in the program. It's a bit like trying to call your HMO with what you think is the flu and having a recording guide you through a series of numbers that land you back at the initial message welcoming you to the system. Of course, you can end that phone loop simply by hanging up. The only way to permanently extract yourself from an infinite loop in a computer program, however, is to find the programming defect. Press the refresh key, check the power chord, buy a new computer -- none of these fixes will work as long as the fundamental flaw in the program is ignored.

If you have any doubt that the NSA spying "debate" is trapped in an infinite loop, you need only review two pieces of evidence. The first, which we'll call "Exhibit A," is an article, dated March 8, 2006, entitled "Gonzales: NSA Program Doesn't Need a Law." Aha, you say, a mere headline. But this is what the article says: "The Attorney General made clear Wednesday, March 8, that the White House is not seeking congressional action to inscribe the National Security Agency's monitoring into U.S. law."

How, you wonder, could that be true? Since December, the President, White House Press Secretary Scott McClellan, and Secretary of State Condoleezza Rice, among others, have said that FISA is outdated, not sufficiently agile, ineffective against terrorists, and too paper-intensive. Perhaps the AP reporter misinterpreted Gonzales' remarks…

I now refer you to Exhibit B -- a February 28, 2006 letter from Alberto Gonzales to Arlen Specter, Chairman of the Senate Judiciary Committee. In answer to a question about what changes to FISA are needed, Gonzales explicitly says, "The Administration believes it is unnecessary to amend FISA" to accommodate the spying program.

Members of the Bush administration have admitted that they routinely ignore FISA. That does not mean, however, that they believe there's anything wrong with the law. On the contrary, the Bush administration does not think the law needs to be changed; nor does it even want the law to be changed.

Let's review. Members of the Bush administration have admitted that they routinely ignore FISA. That does not mean, however, that they believe there's anything wrong with the law. On the contrary, the Bush administration does not think the law needs to be changed; nor does it even want the law to be changed. So every time you hear a Bush team member mention problems with FISA, all you need to do is think like a lawyer and the terms "objection.. irrelevant" will come to mind. Under the circumstances, why should Congress waste one more minute trying to amend a law the administration has no desire to see amended?

Unfortunately, disposing of the issue of changing the FISA law just brings us back to the point where the administration confessed to conducting electronic intercepts in the first place without following the procedures set forth in that law -- in, to be exact, FISA's criminal penalty provision (Title 18, United States Code, Section 1809). In other words, it brings us back to the matter of a crime having been committed. On this, as we loop upwards again, the administration claims two defenses -- one based on its reading of the FISA statute; the other on its interpretation of the Constitution.

The Statutory Argument: That Pesky "After-the-Fact" Feeling

The statutory argument is that the FISA law allows an exception to its procedures if the surveillance in question is otherwise "authorized by statute." The administration argues that the September 18, 2001 congressional Authorization to Use Military Force ("AUMF") against those responsible for the September 11 attacks is, in fact, a statute that satisfies this provision. However, not even the Republicans on the Senate Judiciary Committee consider this to be a reasonable argument. As Arlen Specter said during the February 6 NSA wiretap hearings, "[the AUMF argument] just defies logic and plain English." In the same hearing, South Carolina's Senator Lindsay Graham told Gonzales that the administration's statutory argument was "very dangerous."

One other small problem: The administration's statutory argument appears to have been devised after the NSA program began. As it happens, it is premised in large part on the analysis of a Supreme Court detainee case (Hamdi v. United States) that was not even decided until 2004. Also, though the Department of Justice's Office of Legal Counsel has released an unsigned 42-page paper, dated January 20, 2006, which purports to set out the administration's legal analysis, Attorney General Gonzales has refused to provide the Senate Judiciary Committee with any memos setting forth a legal analysis of the NSA surveillance program written before it began in October 2001. As Senator Patrick Leahy noted, Gonzales has even refused to say when the statutory argument was first devised.

However, what Gonzales has acknowledged is that the administration's legal analysis has "evolved over time." This is a damning, if not entirely surprising, admission. The Office of Legal Counsel is charged with providing objective and balanced advice to the President before he takes action; it is not supposed to be a firm of defense lawyers dedicated to crafting justifications in hindsight.

Gonzales' cavalier statement is corroborated by recently disclosed emails, sent in December and January, by David Kris, a former Associate Deputy Attorney General, to the Office of Legal Counsel lawyers who were preparing the written justification for the NSA spying program. After reviewing the draft white paper, Kris commented that the AUMF statutory argument had a "slightly after-the-fact feeling" to it. He was perfectly positioned to make this observation because he had been in charge of national security matters at the Justice Department from 2000 to 2003. As his emails and a lengthy January 25, 2006 memo that he provided to journalists make clear, Kris knew nothing whatsoever about the NSA surveillance program even though, when it began, he headed the legal department assigned to its oversight. As to the administration's statutory argument in support of the NSA operation, Kris, an expert on FISA, was clearly not persuaded.

The Constitutional Argument: Those Pesky Other Branches of Government

Unfortunately, the nearly universal conclusion that the administration's statutory argument is meritless does not extricate us from the loop for a simple reason. Despite the administration's quite successful attempt to suggest otherwise, it is clear that the statutory argument has never been its principal rationale for the warrantless surveillance program. Its main justification has always been the constitutional argument that, under Article II, and as commander-in-chief, the President has the authority to prevent further attacks by taking whatever "military" actions he deems necessary to achieve that end. Although this argument enjoys the support of a few exceedingly conservative law professors, it has been brilliantly refuted, time and again, by the majority of legal scholars.

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