Democratic Sen. Patrick Leahy lost his patience during yesterday's Senate hearings on NSA wiretapping after Attorney General Alberto Gonzales said, for the umpteenth time, that he would not be able to answer a question because he didn't want to get into "operational details." "Oh, I'm sorry," Leahy said. "I forgot—you can't answer any questions that might be relevant." Leahy had seemed grouchy from the start. But after a marathon session that was long on theories of statutory interpretation and short on specifics about the wiretapping program itself—much less reliable assurances that the program is not being abused—it was hard not to sympathize with the senior senator from Vermont and detect in Gonzales' rote evasions and implacable smile a faint note of smugness.
Throughout the day, Gonzales did not stray from the explanations of the intelligence program already enunciated in the Justice Department's White Paper on the subject. The program targets terrorists and protects civil liberties. How does it select those targets, the senators wondered. Gonzales didn't want to get into specifics. How does it protect civil liberties? "There are guidelines, minimization procedures," he said vaguely. Could he make available those guidelines and procedures? Nope. "They're classified."
After outlining an expansive interpretation of presidential power, Gonzales suggested that in practice the best check on the executive is … the executive. When questioned about what, if anything, the president could not do, he refused to get into "hypotheticals." The problem for the administration is that without specifics about targeting procedures and safeguards, any defense of the legality of the NSA's program is itself hypothetical. In a rare revealing moment, Gonzales said that the people who make the determination about whom to listen in on are "career professionals" at the NSA—eavesdroppers, in other words. They know better who should be targeted, he said—"certainly than any lawyer." But as Durbin pointed out, alluding to the Japanese internment camps set up during World War II, historically "career professionals" have made some pretty bad decisions about who presents a security threat. With the administration refusing to furnish Congress with any set of guidelines that eavesdroppers must adhere to, Gonzales' "trust us" assurances demand an inordinate amount of trust from Americans and from their elected representatives.
Sen. Dianne Feinstein, D-Calif., conceded that the judiciary committee might not be the forum in which to discuss all the details of the spying program. But she pointed out that to date, the administration has not briefed the intelligence committee either. "You haven't let us ask the question, what is a link? What is an affiliate? How many people are covered?" she said. "What are the precise numbers? What happens to the data?" When asked about the legal standard that the NSA uses to determine when to listen in, Gonzales replied that the standard is probable cause but that he preferred the term "reasonable grounds." He glossed over the important difference between the two and when asked to clarify the semantic shift merely repeated that the standard is both.
It's increasingly difficult to trust the administration in light of the widening gulf between the narrow, civil-liberties-protective "terrorism surveillance program" described by Gonzales and the pervasive, false-positive-afflicted electronic dragnet described in the press. In a major story Sunday, the Washington Post revealed that of the thousands of people whose communications have been intercepted as part of the program, the vast majority have turned out to be unaffiliated with terror groups. In January, the Times reported that the NSA's program has generated so many false or inconsequential leads that within the FBI, a new batch of tips from the NSA was jokingly referred to as more "calls to Pizza Hut." Gonzales denied that the wiretapping program had generated any "serious disagreement" within the Justice Department. Yet, Newsweek recently reported that it did just that, and that some administration attorneys went so far as to hire private lawyers in anticipation that the secret program would eventually be exposed.
The committee did not subpoena the CEOs of any private telephone companies, and Gonzales dodged one question about cooperation from the private sector. But on the morning of the hearings, USA Today revealed that AT&T, MCI, and Sprint are among the private corporations that provide NSA eavesdroppers with a back door into America's communications switches. "Thank God we have a press to tell us what you guys are doing," Leahy said to Gonzales. "Because you're obviously not telling us."
Gonzales' refusal to confront any of this did nothing to enhance the administration's credibility. On the contrary, by stonewalling so adamantly he gave tyranny-fearing Americans something to be concerned about and increased the growing suspicion that the White House and the NSA are up to no good. "I can only believe … that this program is much bigger, and much broader, than you want anyone to know," Feinstein concluded. Given that so much of what we are learning from the press conflicts with the cant offered by the administration, it's hard to argue with her. The whole spectacle raises this question: Why, exactly, should we trust these guys again?