January 4, 2006 | National Review Online

FISA Gotcha!

For the frivolous, war is scandal fodder any which way you choose.

What if President Bush had actually gone to the court created by the 1978 Foreign Intelligence Surveillance Act?

Imagine if, instead of relying on his own constitutional authority, he had done the thing his detractors now insist he should have done. That is, what if he had actually gone to the FISA court and requested authorization to eavesdrop on Americans suspected of helping al Qaeda wage its terrorist war against the United States?

Now, let's suppose the same brave, anonymous “whistleblowers” — in the same sort of flagrant violation of federal law and of the oath of confidentiality they gave to be trusted with access to the nation's most sensitive information — had instead leaked that program. Let's suppose they had gone to James Risen of the New York Times and told him not about warrantless wiretapping but about a surge in eavesdropping under judicial imprimatur.

Would that FISA compliance have made it all okay? Do you really think there would have been no scandal?

Or, in this climate that it has so tirelessly labored to create, do you think the Times would simply have weaved a different scandal?

We are talking, after all, about the newspaper that is now “of record” only if you're keeping track of the hard Left's daily scripts — the trailblazer of an era in which politicizing our national security during wartime, once unthinkable, is everyday fare. We are talking about a crowd that never met a savage they wouldn't Mirandize or a library they wouldn't turn into a safe haven for plotting mass murder.

Would the Times and the rest of the shock troops really be saying the same things they are piously declaiming now? Would we still be hearing: “Of course we believe in aggressively fighting terrorists. Of course we need to root out those collaborating with terrorists. We fully support that, as long as it's done within the Rule of Law”?

Or would we be hearing something altogether different?

Once it had sat on the story for a year, biding its time for the right opportunity to drop the bomb — say, right as the Patriot Act was about to be voted on, or right as the administration was basking in the glow of a successful Iraqi election — is there a snowball's chance on West 43rd Street that the Gray Lady would not have just tinkered with a few adjectives and, presto!, manufactured a domestic spying scandal all the same?

After four years, we should know the score by now. It writes itself:


Bush Secretly Conducted Large-scale Spying in U.S. After 9/11, Officials Say

WASHINGTON, Dec. 15 — Months after the Sept. 11 attacks, President Bush secretly directed the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity.


According to intelligence officials and others familiar with the domestic spying program, who spoke on condition of anonymity because of their growing unease, there was little or no evidence that those targeted for surveillance had engaged in any criminal conduct. Nevertheless, under pressure from Vice President Cheney and other administration hawks, sources said the NSA carried out the covert operation with the approval of a secret court created under an obscure 1978 law, the Foreign Intelligence Surveillance Act, or “FISA.”

A long-established legal framework requires the government to demonstrate to a federal judge probable cause that a serious crime has been committed before electronic surveillance of telephone or email communications may be permitted. Officials privately concede, however, that the Bush administration skirted this constitutional requirement. Instead, it resorted to the FISA court, whose proceedings are shrouded in such secrecy that it convenes in a sound-proof room inside the Justice Department rather than an independent courthouse open to the public.

There, specially selected judges met alone with prosecutors chosen by then-Attorney General John Ashcroft and reviewed wiretap applications. No showing of criminal probable cause was required for the domestic spying.

The government claimed the thousands of Americans it targeted may have had some loose connection to what the Bush administration portrays as a sprawling international terror network. Yet, those targeted for spying were not permitted to appear before the secret court to rebut such suspicions. Nor were they ever given notice of its proceedings, or even of the fact that their private conversations had been monitored.

Moreover, unlike wiretap applications under federal criminal law, which are generally made public once an investigation is concluded, FISA wiretap applications remain forever under seal. Thus, even if conversations captured by the secret surveillance were later to be used in prosecuting Americans for alleged crimes, the decision to use FISA ensures that their counsel would not be allowed to review, much less challenge, the representations made by the Bush Justice Department to enable the covert eavesdropping.

Privacy experts expressed shock and anger over what they described as an obviously widespread, systematic gutting of core constitutional protections. The Bush administration, they said, had accomplished an unprecedented end-around the Fourth Amendment, using a secret court that is a virtual rubber-stamp to invade the most sensitive, private conversations between Americans and their loved ones, friends, business associates, doctors, lawyers, and others — all without any evidence of wrongdoing.

The FISA court has approved nearly 100 percent of the applications presented to it since its inception in 1978. The number of secret applications has sky-rocketed from a relative few to well into the thousands during what the Bush administration calls its global war against terror.

On Capitol Hill, where Congress is in the final stages of considering whether to renew the Patriot Act, several provisions of which are due to expire in just two weeks, Democrats appeared stunned by the revelations.

Some key leaders conceded that, since September 11, 2001, they had been briefed from time-to-time, but only on the broad brushes of the program. Still, they maintained, they had expressed strong reservations about gross violations of privacy. They were outraged now to learn of the breadth of the domestic spying.

Meanwhile, a bipartisan group of Democrats and Republican moderates observed that the Patriot Act confers unprecedented powers on the executive branch. The resulting investigations are conducted in secret, under the auspices of the very same FISA court that has been used for the expansive NSA eavesdropping program.

Consequently, they pointed out, explosive new revelations about domestic spying significantly increased mounting doubts that Patriot Act powers could be reauthorized absent a substantial overhaul to bolster civil liberties protections.

Other top Democrats remained focused on the deliberate evisceration of Fourth Amendment protections that the probable-cause warrant requirement and open court proceedings are designed to protect.

For years, experts and some judges had warned of the potential for abuse of FISA. Such national security powers, they explained, could easily be invoked by a rogue administration as a pretext to spy on Americans — and in particular, on political opponents or targeted racial and ethnic groups — without evidence or meaningful oversight.

Democrats and centrist Republicans concerned about civil liberties thus promised aggressive hearings to probe whether any of the NSA's blanket domestic spying under FISA had been pretextual. Such criminal violations of federal laws against illegal wiretapping, some said, would be impeachable offenses.

That's not the scandal we have. So, sure, let's talk until we're blue in the face about the abstruse legalities of warrantless wiretapping. Have the courts repeatedly recognized the president's constitutional power to conduct warrantless wiretapping? Does the president have the power regardless of whether the courts acknowledge it? Can Congress, by passing a statute like FISA, limit the president's commander-in-chief prerogatives? Is FISA unconstitutional, at least at the margins? Is FISA, in any event, too bureaucratically sclerotic to combat a nimble foe like al Qaeda? Could the administration have avoided controversy by asking Congress to amend FISA? Or by using FISA's provision for retroactive judicial approval within 72 hours of emergency eavesdropping?


But the exhaustion of these questions, in the self-conscious pomp of serious discussion, mustn't obscure what is really going on here. This, plain and simple, is a political game of “Gotcha!” Played with our national security — played with the lives of the innocent.

For serious people, wartime decisions are sober, often excruciating choices between liberty and security. But for those not invested in America's victory over our highly motivated, highly committed enemies, they can be spun into high crimes no matter which choices are made.

And for those whose agenda, far from victory, is vengeance for the Clinton impeachment, they will continue to be spun just that way until that beloved “Mission Accomplished” banner is draped, finally, over the remains of the Bush presidency.

We can politely pretend otherwise. But that's what this “scandal” is about. And what the next one will be about.

— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.