Orwell Would Be Proud
Congress caves on wiretapping.
After Tuesday's party-line vote by the Senate intelligence committee to quash a full-blown investigation of the Bush administration's warrantless surveillance program, it's beginning to appear that the most Orwellian aspect of the scandal is not the surveillance, but the abundance of doublespeak. How else can we explain Senate Majority Leader Bill Frist's March 3 letter to Minority Leader Harry Reid, which states, "I am increasingly concerned that the Senate Intelligence Committee is unable to carry out its critically important oversight and threat assessment responsibilities due to … repeated calls by Democrats on the committee to conduct politically-motivated investigations." Got that? The committee can't conduct oversight because of all those pesky calls for … oversight.
Republicans are billing their alternative to an investigation as a compromise between the demands of the White House and those of Senate Democrats. Sen. Olympia Snowe, R-Maine, says, "We are reasserting Congressional responsibility and oversight." Don't be fooled. The intelligence committee sacrificed itself to the White House this week, and it took the Foreign Intelligence Surveillance Act along with it.
In a hasty about-face, Sens. Snowe and Chuck Hagel, R-Neb., both of whom called for rigorous scrutiny of the NSA program when it was originally revealed, have signed on to a proposal that would foreclose the possibility of any such scrutiny. Along with the rest of their party, they've agreed to reward the Bush administration for flouting FISA by rewriting the law to accommodate the flout. The proposal would extend to 45 days the current 72-hour grace period during which authorities can wiretap before seeking a FISA warrant—and then make the warrant discretionary.
For 45 days, renewable indefinitely, the NSA would be able to intercept the international phone calls and e-mails of U.S. residents if the agency has "probable cause to believe that one party to the communication is a member, affiliate, or working in support of a terrorist group or organization." No judge would have to share the NSA's belief in such probable cause. While authorities are expected to apply for a warrant "whenever possible," this decision will apparently be left to them. If they choose not to seek a warrant, the attorney general must explain this decision to a seven-member congressional "terrorist surveillance subcommittee."
As blogger Glenn Greenwald points out, the proposed legislation replaces FISA judges with Republican senators. The subcommittee will be composed of four Republicans and three Democrats. And despite the shrill protest of Senate intelligence committee Chairman Pat Roberts, who says he is no "lap dog of the administration," it seems likely that he will go along with the Bush administration's eavesdropping activities. So will the other proposed Republican members of the subcommittee, Orrin Hatch, Mike DeWine, and Christopher Bond. The FISA court rejected only a half-dozen applications in its three-decade history; it was always something of a rubber stamp. But at least its members were part of an independent judiciary. This legislation will create a review body that will be subject to direct political pressure and likely even more permissive.
The move to put Republican senators in charge is particularly dismaying in light of the doubts Attorney General Alberto Gonzales has sown about his role as an honest broker. After testifying unsworn before the Senate judiciary committee in February, Gonzales—a lawyer who had ample time to prepare and is acquainted with the gravity of appearing before Congress—sent the committee a six-page, single-spaced letter "clarifying" his remarks. He hinted that there might be other, still secret, NSA surveillance programs. This is especially disturbing in light of the recent revelation, by the National Journal's Shane Harris, that after Congress "killed" the Total Information Awareness program back in 2003, several of its key components were given new code names and secretly shifted—to the NSA. If Gonzales was less than straightforward during his daylong appearance before the judiciary committee, is there any reason to expect that he will be more candid with the new subcommittee?
Sen. Roberts and other Republicans insist that the proposed legislation is a hard-won compromise. It is certainly true that the White House regards even the appearance of oversight as an insult. Administration officials reportedly preferred Sen. DeWine's plan, which would have simply exempted any terrorism-related investigations from the FISA framework altogether. To maintain the position that they believed all along that the program was legal, the administration is obliged to shrug off any ex post facto grant of legitimacy from Congress. But to suggest that the White House has made real concessions in accepting this proposed legislation is absurd. The administration violated the letter of FISA. Without a thorough investigation of what precisely the NSA wiretapping program involves—how many people's phone calls and e-mails are intercepted, what the NSA thinks constitutes "probable cause," how long data are retained—any move by Congress to grant approval is entirely premature. It amounts to "legislating in the dark," as Sen. Ron Wyden, D-Ore., puts it.
Far from "reasserting responsibility and oversight," Congress is putting itself out of business. Sen. Jay Rockefeller, D-W.Va., suggested that, after this week, the intelligence committee will sink "further into irrelevancy." The Times went a step further today and declared the committee dead. And Congress as a whole has suffered, too. The judiciary committee may still hold hearings on the wiretapping program, but they will likely be empty proceedings, inconsequential postscripts to the decisive battle. When Sen. Arlen Specter threatened the other day to use the Senate's power of the purse to cut the NSA's funding, no one, least of all the White House, believed he had any intention of following through. Even as he invoked one of the major powers that the Constitution grants to Congress, Specter underlined just how weak the legislature has become.
War is peace, freedom is slavery, ignorance is strength. Repeat.
Patrick Radden Keefe is is a fellow at the Century Foundation and the author of The Snakehead: An Epic Tale of the Chinatown Underworld and the American Dream.
Photograph of Senate Majority Leader Bill Frist by Chip Somodevilla/Getty Images.