Right Wing Nut House

As more information is released about issues surrounding the top secret NSA intercept program, we’re finding some things that are cause for relief and others that continue to be worrisome. And we are seeing that most delicate of dances in our democracy - the jostling involved in trying to delineate the balance of powers - played out for the most part with a surprising care by members of all three branches of government.

I say surprising because even most Democrats on both the Intelligence and Judiciary Committees seem to recognize the enormous stakes involved and are moving cautiously. Of course, some of the minor actors on both sides are posturing shamelessly, angling for headlines and face time on the talk shows. And then there’s Kos and Company who, in the end, are going to have about as much impact on this debate as their idiotic, screeching denunciations deserve. But looking over the landscape as it exists at the present, I think we can say that there appears to be a willingness not to force a Constitutional crisis over the issues brought out by the warrantless searches and instead, reach a suitable compromise with which all sides can live.

THE EXECUTIVE

Following what most observers say was a mediocre showing by Attorney General Gonzalez before the Judiciary Committee, the Administration was faced with a choice; continue to try and beg off informing Congress about even some of the bare bones details of the NSA program or try and enlist the lawmakers in an effort to keep the program viable. Their hand was pretty much forced when Representative Heather Wilson (R-NM), Chair of the House Technical and Tactical Intelligence Subcommittee which oversees the NSA, threatened to conduct a “complete review” of the program unless a fuller briefing was forthcoming.

At a meeting yesterday, the full Intelligence Committee of the House was given a briefing by AG Gonzalez and General Hayden of the NSA on not only the legal justification for the program but also what Wilson has called “minimization procedures and mechanisms in place and reviews conducted to ensure full compliance with the Foreign Intelligence Surveillance Act and other laws protecting the privacy of U.S. persons.” Following that meeting, several members including some Democrats expressed surprise and relief at how carefully the program seemed to be tailored.

In one sense, the Administration’s cooperation with Congress was the right thing to do. Yes it might impinge on Presidential prerogatives but at the same time, the Administration read the writing on the wall. Several prominent Republicans in both the House and the Senate have demanded more information from both the NSA and the Department of Justice and the Administration realized their wiggle room had almost disappeared. Just how far this cooperation goes will depend on what the Congress will end up doing with both the NSA program and FISA.

CONGRESS

There appears to be a movement in the Senate to bring the NSA program under the auspices of the FISA court. Senator Arlen Specter, Chairman of the Judiciary Committee announced he is drafting a bill that would “require the administration to take the program to the Foreign Intelligence Surveillance Court.” And Senator Sam Brownback seemed to get on board by saying “I think there’s a decent shot at crafting legislation to make the FISA court a more workable option” for setting guidelines for the surveillance program. He said he wants “a separate set of eyes involved in this to provide safeguards.”

What makes this move significant is that rather than have the Justice Department (and probably NSA lawyers) as the final arbiters regarding who is targeted by the program, the Congress wants to assert its authority by retroactively giving its blessing to the program while also requiring the Administration to go hat and hand to the FISA court in order to continue it. Senator Chuck Hagel explains:

Sen. Chuck Hagel (R-Neb.) said in an interview that the “balance must be preserved between the executive branch and the legislature. And I think this is a clear example of where the balance has gotten skewed. . . . The administration cannot unilaterally assume that they have the answers to get around or go over a law.”

Clearly Hagel speaks for a lot of legislators, both Republican and Democratic, who have viewed the Administration’s aggressive domestic security initiatives with something of a jaundiced eye. The President has not been shy about exercising what he sees as executive branch war time powers in order to keep the country safe. Congress, as Congress is want to do, is extremely jealous of its own prerogatives. And thus we have a tug of war between the two branches where both sides are sincere and both may be right.

THE COURTS

Here is where the courts come in. And if this curious article in today’s Washington Post can be believed, what has been going on in the FISA court is at the same time puzzling and worrisome:

Twice in the past four years, a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush’s eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.

The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly — who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.

Essentially, the Chief FISA judge was concerned that 1) FISA was not competent to determine whether or not the program was legal, and 2) information from the program not be the sole basis for future FISA warrants. In other words, the Post lede is misleading because the doubts raised by Judge Kollar-Kotelly were not about the actual legality of the program but rather about the standing of the FISA court itself to judge Constitutional issues.

But Kollar-Kotelly’s complaints about tainted wiretaps are a serious issue as we’ve already seen. It is likely that more than one terrorist will attempt to use these revelations as grounds for release from custody.

As Hugh Hewitt has pointed out, in some ways, by taking the two ranking FISA judges into their confidence regarding the NSA program, the Administration may have undercut some of its legal rationale:

The “deal” seems to me to assume that the president lacks the authority to order the NSA surveillance his government put into place, and also seems to arbitrarily burden the FISA process with a new procedural hurdle, one developed by one or two judges, never communicated to their colleagues on the FISC, and never reviewed by an appeals court.

Mr. Hewitt also questions some of the Chief Judge’s unilateral decisions about how NSA information would be handled by the FISA court as well as taking the Department of Justice to task for not “testing” the President’s authority by forcing the FISA court to act.

I wouldn’t dream of crossing Hugh Hewitt on a matter of law but I think the situation with the FISA court points up the Administration’s extreme caution. They knew they were treading in dangerous Constitutional waters and evidently felt insecure enough about the legality of the program that they took the two top FISA judges into their confidence. The judges in turn did their job by requiring DOJ lawyers to get corroborating evidence not based on the warrantless intercepted communications in order to get a FISA warrant. The fact reported in the Post - that there were only two instances where the arrangement didn’t work - should be reassuring. It appears that both branches of government were doing their jobs.

We only have one Constitution. And while I don’t agree that it is a “living” document in the same way that liberals do, it certainly is elastic enough. Over the years, it has been pulled and stretched by the Legislative and Executive branches in a constant battle to exercise power. This is what the framers saw. It’s what they wanted.

Now, if we could only keep the political Mickey Mouse to a minimum, we can get on with the task for protecting the country from terrorists as well as an overreaching executive and a grasping legislature.