The skeptics who doubt that 21,000 more troops will be the difference between war and peace in Iraq may be underestimating the Bush administration, which recently demonstrated it can do the impossible. This month, after violating the Foreign Intelligence Surveillance Act (FISA) by eavesdropping on Americans without warrants for five years because obtaining judicial approval would have endangered national security, the administration somehow found a way to obey the law without sacrificing our safety.
By exposing the hollowness of President Bush’s national security justification, his tardy compliance with FISA demonstrates more contempt for the rule of law than continued defiance would have. Since the National Security Agency’s warrantless surveillance program was publicly revealed in December 2005, the administration has maintained "it was absolutely necessary to protect the security of our country," as Attorney General Alberto Gonzales told the Senate Judiciary Committee on Jan. 18. Now we know that’s not true.
From now on, Gonzales said, NSA surveillance of international e-mail and phone calls involving people on U.S. soil "where there is probable cause to believe that one of the communicants is a member or agent of Al Qaeda or an associated terrorist organization" will be "subject to the approval of the FISA court." Although the Bush administration publicly insisted for a year that such a concession would compromise national security, Gonzales promised "the country will not be any less safe" now that the president has deigned to follow the law.
According to Gonzales, the Justice Department managed to square this circle by coming up with a "complicated" and "innovative" approach that complies with FISA yet allows the "speed and agility the government needs to protect our nation from the terrorist threat." Since the statute explicitly permits retroactive approval of surveillance in emergencies up to 72 hours after the fact, it’s not clear what additional leeway the government thought it needed.
Nor is it clear how the government was able to get that extra flexibility without asking Congress to change the law (something Congress has been happy to do in the past). Gonzales refused to clarify whether the FISA court orders cover particular individuals (as the Justice Department has implied), groups of suspects or the program as a whole, although it’s hard to see how answering that question would jeopardize national security.
Gonzales also failed to explain why complying with FISA was not possible until now. Although Bush administration officials discussed it "from time to time" over the years, he said, negotiations with the FISA court did not begin until 2005, in response to "the concerns raised" by members of Congress who knew about the program before The New York Times publicly disclosed its existence. He insisted the administration’s reversal had nothing to do with the Times story, the ensuing criticism or the lawsuits challenging the program’s legality.
Whether you buy that or not, the reason for the delay in complying with FISA is clear: When it comes to fighting terrorism, the president considers obeying the law optional. As Gonzales emphasized, the administration still maintains the president is not obligated to follow FISA; he is doing so only because he has decided that "involving all branches of government on such an important program is best for the country." Given the president’s view of his "inherent" powers, he could go back to evading the courts and flouting the will of Congress any day.
Bush is vague about the limits of the powers he claims — whether, for instance, they include the authority to unilaterally order the opening of mail or the surveillance of purely domestic phone calls. Worse, he asks us to blindly accept his word that in any given case the terrorist nexus that supposedly justifies these extraordinary measures is in fact present. The danger of such unchecked power is the reason that, under our Constitution, "involving all branches of government" is not just a good idea; it’s the law.