The Real Wiretapping Scandal

Our Terrorist Surveillance Program isn't as effective it was a few months ago. Where's the outrage?

By David B. Rivkin Jr. and Lee A. Casey
Monday, July 30, 2007 12:01 a.m. EDT

Last Tuesday's Senate Judiciary Committee hearing--at which Attorney General Alberto Gonzales was insulted by senators and ridiculed by spectators--was Washington political theater at its lowest. But some significant information did manage to get through the senatorial venom directed at Mr. Gonzales. It now appears certain that the terrorist surveillance program (TSP) authorized by President Bush after 9/11 was even broader than the TSP that the New York Times first revealed in December 2005.

It is also clear that Mr. Gonzales, along with former White House Chief of Staff Andrew Card, tried to preserve that original program with the knowledge and approval of both Republican and Democratic members of key congressional committees. Unfortunately, they failed and the program was narrowed. Today, the continuing viability of even the slimmed-down TSP--an indispensable weapon in the war on terror--remains in serious doubt.

The administration's most immediate concern since 9/11 has understandably been whether al Qaeda sleeper agents, already inside the U.S., would carry out additional catastrophic strikes. To counter this real and continuing threat, President Bush authorized the National Security Agency (NSA) to intercept a full range of al Qaeda communications, presumably on a global basis.

The TSP was not implemented pursuant to the Foreign Intelligence Surveillance Act (FISA), which permits a special federal court to issue surveillance orders when Americans and others are targeted for intelligence gathering inside the U.S. Rather than utilizing FISA's cumbersome and restrictive procedures, the administration relied on the president's inherent constitutional authority as commander in chief to monitor enemy communications in wartime, as presidents have done since Lincoln's day.

In addition, the administration correctly relied on Congress's Sept. 18, 2001, authorization for the use of military force against al Qaeda. In 2004, the Supreme Court ruled that this statute authorized the president to employ all the "fundamental incident\[s\] of waging war." This, by any reasonable standard, would include secretly listening in on the enemy's phone calls, and reading their faxes, emails and text messages.


At least, that is what one would have thought. In December 2005, however, a firestorm of controversy erupted when The New York Times published a story describing the TSP. Although it was clear from the beginning that the program targeted al Qaeda--a particular communication was intercepted based on the presence of a suspected al Qaeda operative on at least one end--and not directed at ordinary Americans going about their daily routines, the administration's critics quickly wove the TSP into their favorite overarching anti-Bush narrative. They cited it as just one more example of a supposedly power-hungry president, the new "king George," chewing up our civil liberties.

Administration officials, including Attorney General Gonzales, repeatedly explained the TSP to Congress and the public, presumably to an extent consistent with continuing national security imperatives. In particular, they said that only communications where at least one party to the conversation was outside of the U.S. were intercepted; purely domestic calls were not in play. But after months of congressional pressure, and having failed to secure new legislation that would have fundamentally revised FISA, the administration announced in January this year that it had reached an agreement with the special FISA court to bring the TSP under judicial auspices.

The administration also claimed that the program remained as encompassing as before, so that no national security interest had been compromised by the new arrangement. The TSP's defenders were skeptical. Given how FISA orders are normally sought and granted, it is difficult to believe that they could be used to surveil all conversations of legitimate security interest--such as those involving people who are not full-fledged al Qaeda members, but who are its witting or unwitting supporters. Intercepting the full spectrum of al Qaeda communications is indispensable to obtaining a full picture of its activities, and protecting the American people from attack.

And while the FISA concession put new restrictions on a program that had successfully protected America from attack since 9/11, it did not dampen the TSP controversy. In May, former Deputy Attorney General James Comey described--before a far more congenial Senate Judiciary Committee--a dramatic late night confrontation in March, 2004. It involved Mr. Comey, FBI Director Robert Mueller, Mr. Gonzales and Mr. Card, all gathered in the hospital room of then Attorney General John Ashcroft. Mr. Ashcroft, who must have signed off on, or at least have known about, the TSP years before, had transferred his authority to Mr. Comey for the duration of his gallbladder surgery. Mr. Comey refused to re-approve the program (which was expiring the next day) because of legal concerns, and the White House wanted Mr. Ashcroft to overrule him.

Mr. Ashcroft, however, now sided with Mr. Comey. Reportedly, he and others even threatened to resign if Mr. Comey did not get his way. The matter quickly reached the president, who authorized Mr. Comey to revise the TSP. The result, it should be emphasized, was the restructured TSP, which was subsequently revealed and vociferously attacked by the administration's critics in December 2005. Those critics, in and out of Congress, immediately seized upon Mr. Comey's May 15 testimony as proof that Mr. Gonzales had lied to Congress when he stated earlier that there was no disagreement at Justice regarding the TSP's legality.

Last Tuesday, however, the circumstances of this midnight drama and the nature of the issues at stake got a lot clearer. Mr. Gonzales, who obviously is still trying to explain things without revealing TSP details that remain classified, noted that the emergency visit to Mr. Ashcroft came after a meeting with White House personnel and the so-called "gang of eight"--the heads of various congressional intelligence committees--who agreed that the TSP had to continue. (Predictably, a number of "gang of eight" Democrats dispute this consensus, but they were clearly aware of the program and presumably White House logs can verify their meeting attendance.)

What now seems equally indisputable is that Mr. Gonzales did not lie to Congress--top Justice Department officials had all approved the 2005 TSP to which he was referring. The disagreement described by Mr. Comey involved the original TSP, in place from 2001-2004. This also explains Mr. Gonzales's statement Tuesday, which prompted calls for the appointment of a special counsel to investigate him for perjury, that the White House meeting with congressional leaders was devoted to discussion of "other intelligence activities." In the language of congressional intelligence oversight, even minimal differences between one program and another can constitute "other" distinct intelligence activities. In this context, Mr. Gonzales was clearly referring to the original TSP, the details of which remain classified, and not the 2005 TSP. Although it is impossible to know for sure, it is a good bet that the original TSP--to which Mr. Comey objected--was broader than the 2005 program and that it permitted interception of al Qaeda communications entirely within the United States (and may also be connected in some manner to datamining efforts, as suggested in Sunday's New York Times).

Such interceptions, unlike the monitoring of international wire traffic, could not be plausibly claimed to fall outside of FISA's language, although they could certainly be justified based on the president's wartime authority to spy on the enemy. Evidently, Mr. Comey didn't think so--or at least was unprepared to issue a compliance certification on the point. Reasonable minds can disagree here, but there was nothing inappropriate about White House officials trying to have Mr. Comey overruled by his boss. John Ashcroft certainly could have reassumed his authority as attorney general, even in his hospital bed.

What has gotten lost in all of this increasingly sordid game of political gotcha is the viability of a critical program in the war on terror. The TSP was brought under the FISA court's jurisdiction this January, allegedly without impairing its effectiveness. But FISA orders are not permanent. They must be periodically reissued, and FISA judges rotate. As an editorial on the facing page of the Journal first reported Friday, well-placed sources say that today's FISA-compliant TSP is only about "one-third" as effective as the 2005 version--which, in turn, was less comprehensive than the original program. This is shocking during a summer of heightened threat warnings, and should be unacceptable to Congress and the American people.

The problem is particularly acute because FISA's 1978 framework has been rendered dysfunctional by the evolution of technology. FISA was enacted in a world where intercepts of purely foreign communications were conducted overseas, and were entirely exempt from the statutory strictures. Only true U.S. domestic communications were intercepted on U.S. soil and these intercepts were subjected to FISA's prescriptive procedures. Yet, with today's fiber optic networks functioning as the sinews of the global communications system, entirely foreign calls--say between al Qaeda operatives overseas--often flow through U.S. facilities and can be most reliably intercepted on American soil. Subjecting these intercepts to FISA strictures is absurd.

Moreover, the very fact that the intelligence community operates in a state of continued uncertainty about what precise surveillance parameters would be allowed in the future--instead of having the collection efforts driven entirely by the unfolding operational imperatives--is both unprecedented in wartime and highly detrimental. In past wars, as fighting continued, valuable battlefield experience was gathered, causing weapons systems, military organization and combat techniques to improve consistently. In this difficult war with al Qaeda, by contrast, the key battlefield intelligence-gathering program has been repeatedly emasculated.


Congress' obsession with the TSP's legal pedigree has become the major threat to its continued viability, rivaling in its deleterious impact the infamous "wall," much criticized by the 9/11 Commission, which prevented information sharing between the Justice Department's intelligence and law-enforcement divisions. It is hypocritical for those in Congress who preach fidelity to the 9/11 Commission recommendations to behave so dramatically at odds with their spirit. The question Judiciary Committee members should have been asking Mr. Gonzales was not whether he had misled them--he clearly did not--but whether the TSP is still functioning well. The question the public should be asking those senators--and with not much more civility than the senators showed Mr. Gonzales--is what are they going to do about it if the answer is no.