Is President Bush surrendering in the war on terror? For more than a year, the administration has insisted that preserving its "terrorist surveillance program," which involves unfettered and unauthorized wiretapping of Americans suspected of communicating with al Qaeda operatives abroad, was, in the words of former press secretary Scott McClellan, "a vital tool" for us "to stay a step ahead of a deadly enemy that is determined to strike America again." Now, Atty. Gen. Alberto Gonzales says the program will not be renewed.
Before, we were told it was impossible to combat terrorism within the confines of the 1978 Foreign Intelligence Surveillance Act (FISA), which places such investigations under the review of a special intelligence court — a process Gonzales portrayed as cumbersome and obsolete.
But that was in the past. "Any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court," wrote Gonzales in a letter to the Senate Judiciary Committee last week. Did we say impossible? We meant easy!
This about-face must be causing massive cognitive dissonance within the administration and among conservatives who regard any check on executive power as a favor to al Qaeda. From the moment the secret National Security Agency program was revealed by The New York Times in 2005, Republicans treated its critics as foolish appeasers.
Never mind that it apparently violated the law, and never mind that it let the government spy on Americans right here at home, without bothering to get the search warrants that are normally required. Issues of legality, constitutionality and privacy cut no ice with the administration and its supporters. Either you were for the program, or you preferred to expose us to catastrophe.
During last fall’s campaign, Bush mercilessly ridiculed congressional critics. "They must not think we’re at war," he charged. "When the Terrorist Surveillance Program was brought to a vote on the floor of the House of Representatives, the vast majority of Democrats voted against it." So when, exactly, did the war end?
Even stalwart administration allies are asking that question. An editorial in The Wall Street Journal, which defended the program from the start, declared itself "baffled by Mr. Bush’s surrender" and warned that the "administration has some explaining to do — not least to its own officials who spent months saying FISA warrants were dangerously restrictive."
Contrary to the president’s suggestions, critics were never against surveillance of al Qaeda confederates in the United States. They only wanted the government to do what cops normally do when they want to eavesdrop: go to a judge and explain why the person targeted warrants investigation. In an emergency, FISA even allows the NSA to install the wiretap first and seek approval within 72 hours. But that wasn’t good enough for the administration.
The attorney general now says the NSA no longer has to operate as it did because the Justice Department worked with the Foreign Intelligence Surveillance Court to devise a faster, more flexible way to get a judge’s approval of wiretaps. But if there is a way to do that, why did the administration wait five years to propose it?
Congress, after all, has amended FISA several times since it was enacted. Yet the White House chose to circumvent the law and create a secret program that, if the president had his way, would still be spying on Americans without our knowledge.
We don’t know exactly how the program will operate under the court’s supervision, because Gonzales refuses to say. But apparently the administration has succumbed to the once-intolerable burden of demonstrating to judges that certain people pose a danger before they are bugged.
Sen. Arlen Specter, R-Pa., the ranking Republican on the Judiciary Committee, says Justice Department officials assured him the eavesdropping will proceed on the basis of old-fashioned individualized warrants, not simply a blanket court approval of what the NSA was doing. Other sources told The Washington Post that such warrants are one part of the new system. So apparently we can fight al Qaeda without giving up our privacy protections.
Maybe we were misled before, or maybe we’re being misled now. But the next time the president tries to sell us on the idea that some expansion of executive power is critical to fighting terrorism, I hope he’ll throw in the Brooklyn Bridge.