Thursday, May 11, 2006

All past statements are inoperative

Once again, we are witnessing a presidential credibility gap.

In the wake of today's revelation that the National Security Agency since 2001 has been secretly amassing the home and business phone records of tens of millions of ordinary Americans, most of whom aren't suspected of any crime -- in other words, a purely domestic surveillance program -- it becomes necessary to revisit certain Bush administration statements, and to reclassify them as untrue.

1. President Bush, August 2004: "Now, by the way, any time you hear the United States government talking about wiretap, it requires--a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so....because we value the Constitution."

That turned out to be untrue, in the wake of the news last December that the NSA was monitoring international calls between people here and people abroad. The NSA was doing it without a court order, even though warrants are apparently required by the 1978 Foreign Intelligence Surveillance Act, which states that it is "the exclusive means by which electronic surveillance...may be conducted," even ""during time of war."

2. After that program was revealed by the New York Times, thereby rendering Bush's 2004 statement inoperative, Bush stated anew on Jan. 25 of this year that Americans at home need not be concerned, because "the program applies only to international communications. In other words, one end of the communication must be outside the United States."

3. A White House spokeman also said NSA spying was not domestic in nature: "This is a limited program. This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner."

4. A strong assurance came from Attorney General Alberto Gonzales, testifying to the Senate Judiciary Committee on Feb. 6: "First, only international communications are authorized for protect the privacy of Americans still further, the NSA employs safeguards to minimize the unnecessary collection and dissemination of information about U.S. persons."

5. A stronger assurance came from Gonzalez, during an exchange on April 6 with the House Judiciary Committee. Check this out.
Q: "Can you assure us that there is no warrantless surveillance of calls between two Americans within the United States?"
GONZALES: "That is not what the president has authorized."
Q: "Can you assure us that it's not being done?"
GONZALES: "As I indicated in response to an earlier question, no technology is perfect (but) we do have minimization procedures in place..."
Q: "But you're not doing that deliberately?"
GONZALES: "That is correct."

All those statements now appear inoperative, in the wake of today's report that the NSA successfully leaned on all the phone companies (except QWest) to cooperate in its purely domestic program to collect "external" data on millions of citizens, and ultimately, in the words of one inside source, "to create a database of every call ever made" in America. And, just as adherence to FISA was deemed unnecessary for the international program, adherence to Section 222 of the federal Communications Act was deemed unnecessary for the domestic program. (Under that law, phone companies are barred from releasing information on customer calling habits - such as who gets called, or how often. And the law also covers incoming calls.)

So now we have new operative statement from the president, issued earlier today. Considering the administration's record, it probably requires some parsing. He stated: "We're not mining or trolling through the personal lives of innocent Americans." That can be classified as a non-denial denial. Bush never specifically denied the news that the NSA has indeed been running a purely domestic program. He was merely insisting that the collection, analysis, and storage of people's phone call records should not equated with "trolling" through their personal lives.

No doubt, there will be another debate about the legalities of all this -- I see that Bush's defenders are already online saying that this newly-revealed program is constitutional -- but, for now, I am more interested in its political dimension.

Last winter, the polls reported that a slight majority of Americans were OK with the idea that Bush was monitoring international calls, and it was clear earlier this week that he was relishing the opportunity of defending that program when ex-NSA chief Michael Hayden comes up for scrutiny as the new nominee to run CIA. But what about now? It will be instructive to watch the polls, and gauge the reaction of Americans to this domestic program, because this is now the factual shorthand:

The Bush administration got the telecommunication firms to fork over data that will enable it to track every call made by every American. It's likely that conservatives who are concerned about privacy rights will sound off about this. It's arguably less likely that many Democrats, still fearing to appear "weak on terrorism," will do the same.

Nevertheless, expect to hear the lawmakers make noise about conducting (yet another) probe of the administration's conduct. After all, the Bush administration has already demonstrated that it won't probe itself. For instance:

Recently, the Justice Department's ethics office launched a probe that was intended to scrutinize the actions of the government lawyers who had signed off in secret on the international surveillance program (the one that was revealed last December). But today we learn that the ethics office investigators hit a brick wall -- because they were denied the requisite security clearances.