Say Anything Blog

Joe Klein:

House minority leader Nancy Pelosi, the California Democrat, engaged in a small but cheesy bit of deception last week. She released a letter, which quickly found its way to the front page of the New York Times, that she had written on Oct. 11, 2001, to then National Security Agency director General Michael V. Hayden. In it she expressed concern that Hayden, who had briefed the House Intelligence Committee about the steps he was taking to track down al-Qaeda terrorists after the 9/11 attacks, was not acting with "specific presidential authorization." Hayden wrote her back that he was acting under the powers granted to his agency in a 1981 Executive Order. In fact, a 2002 investigation by the Joint Intelligence Committees concluded that the NSA was not doing as much as it could have been doing under the law—and that the entire U.S. intelligence community operated in a hypercautious defensive crouch. "Hayden was taking reasonable steps," a former committee member told me. "Our biggest concern was what more he could be doing."

The Bush Administration had similar concerns. In the days after 9/11, it asked Hayden to push the edge of existing technology and come up with the best possible program to track the terrorists. The result was the now infamous NSA data-mining operation, which began months later, in early 2002. Vast amounts of phone and computer communications by al-Qaeda suspects overseas, including some messages to people in the U.S., could now be scooped up and quickly analyzed.

The release of Pelosi's letter last week and the subsequent Times story ("Agency First Acted on Its Own to Broaden Spying, Files Show") left the misleading impression that a) Hayden had launched the controversial data-mining operation on his own, and b) Pelosi had protested it. But clearly the program didn't exist when Pelosi wrote the letter. When I asked the Congresswoman about this, she said, "Some in the government have accused me of confusing apples and oranges. My response is, it's all fruit."

A dodgy response at best, but one invested with a larger truth. For too many liberals, all secret intelligence activities are "fruit," and bitter fruit at that. The government is presumed guilty of illegal electronic eavesdropping until proven innocent. This sort of civil-liberties fetishism is a hangover from the Vietnam era, when the Nixon Administration wildly exceeded all bounds of legality—spying on antiwar protesters and civil rights leaders.

Henry Kissinger even wiretapped his own aides. But the "all fruit" assumption doesn't take into account the strict constraints placed on the intelligence community after the Nixon debacle, or the lethally elusive nature of the current terrorist threat. The liberal reaction is also an understandable consequence of the Bush Administration's tendency to play fast and loose on issues of war and peace—rushing to war after overhyping the intelligence on Saddam Hussein's nuclear-weapons program, appearing to tolerate torture, keeping secret prisons in foreign countries and denying prisoners basic rights. At the very least, the Administration should have acted, with alacrity, to update the federal intelligence laws to include the powerful new technologies developed by the NSA.

But these concerns pale before the importance of the program. It would have been a scandal if the NSA had not been using these tools to track down the bad guys. There is evidence that the information harvested helped foil several plots and disrupt al-Qaeda operations.

Read the whole thing.

What amazes me is how many people are out there willing to conclude that the Bush administration broke the law in authorizing this NSA program without knowing any real specifics about what data was gathered and who it targeted. We know that communications to/from "people inside the United States" were monitored, but were they citizens? Foreign nationals? People in this country illegally? We don't know.



We also know that the NSA was "data mining." But what data was being mined? Was it the actual content of emails and phone calls or was it "on the envelope" type information such as originating/destination number, duration of call, etc.? I'd point out that the latter type of information does not require a warrant in order for it to be gathered.

I also wonder why Congress, who was clearly kept abreast of this program, didn't use some of their checks on executive powers if they were so concerned over the legality of this NSA program? The President claims that his war powers enshrined in Article II of the Constitution gave him the authority to authorize this program, yet the executive branch of our government can only utilize those war powers at the direction of Congress. Certainly Congress could have been more definitive in the scope of what they authorized when they gave the President authorization for war after 9/11. Or, if they had concerns that the President was overstepping his bounds, they could have amended their authorization to limit what he was doing.

The President, despite the talking points being used by leftist demagogues across the nation, is not a King. His executive powers are limited by the checks and balances of the other two branches of government, but in order for those checks and balances to work the other branches of government must actually be willing to use them. It is not the role of Congress to stand to the side and observe Executive action only to join in the littany of criticism after some of that action comes under fire. If members of Congress had a problem with the NSA program they should have acted through the channels available to them to stop it or take other appropriate action.

As near as I can tell, not one member of Congress did any such thing. Which begs the question: Why is Congress kept abreast of these things if they are going to refuse to act until after the fact? The point in including them in the process is so they can act as a check on Executive power before problems arise. Before the program is made public through an illegal leak to the press.

Personally, I welcome a review of these powers used by the Bush administration. I am not at all convinced that they were illegal, but a review is warranted none-the-less. We are in a brave new era of warfare. As we enter that era we should know the groundrules for combat. If an investigation/review of the President's authorized intelligence gathering programs gets everybody on the same page and ends the distractions then so be it. Let's do it. But let's also not pretend like Congress was kept in the dark about this and could do nothing. They weren't in the dark, and could have done something. They didn't.

Or, more accurately, they didn't do anything until they were sure what they were doing would be making headlines.

joe klein, nsa, data mining, nancy pelosi, president bush, war on terror, espionage