Congress, The Attorney General and The Foreign Intelligence Surveillance Act

Benjamin Wittes

One of the problems with having a dissembling attorney general is that it becomes difficult for his administration to move agenda items that rely to any degree on his credibility–even when they might have merit. In his recent testimony before the Senate Judiciary Committee, Alberto Gonzales provoked bipartisan rage by grossly misrepresenting the 2004 dispute within the Justice Department over the National Security Agency’s warrantless surveillance program. When such a thing happens, it’s a little tricky for that same attorney general that same day to ask that same Congress to give him broad new surveillance powers. Yet, in an act of monumental chutzpah, that is exactly what Alberto Gonzales did. The amazing thing is that, at least for now, he seems to have gotten away with it.

Gonzales’s misrepresentation was not the kind one could prosecute. He told the committee, as he has done before, that there was no serious dispute within the administration as to the legality of the so-called Terrorist Surveillance Program (TSP), and that the infamous confrontation in then-Attorney General John Ashcroft’s hospital room in March 2004 was not over the program but over “other intelligence activities.” This was, well, untrue–or, rather, true in the very narrow sense that Gonzales was using the term “terrorist surveillance program” to refer only to the specific portion of the NSA’s program that President Bush had publicly acknowledged. The dispute, it seems, centered on related NSA activity authorized by the same secret executive order and which many officials–including FBI Director Robert Mueller–regard as part of the same program. It depends, you see, on what the definition of “program” is.

This ambiguity is surely enough to get the attorney general off the hook for perjury, so talk of an independent counsel is kind of silly. But his comments have been intentionally deceptive, just the thing to finish off for good his already-frayed credibility on Capitol Hill. Members of Congress have every right to conclude that his testimony vitiates whatever vestiges of fitness for his office Gonzales might have retained up until that point.

But Congress didn’t wave it off. Rather, the Democratic-controlled body passed a temporary version of the administration’s proposal, after a standoff in the run up to the legislature’s August recess. Under the new law’s terms, FISA will not apply when the government’s surveillance target is “reasonably believed” to be abroad–even if the other party to the monitored communication is, say, a United States citizen in his home. Such surveillance can be authorized by, you guessed it, Alberto Gonzales and the director of national intelligence.

The details of the problem remain shrouded in the larger mystery of the NSA’s program–a mystery that would make a responsible public policy debate difficult under the best of circumstances. Still, some of the troubles with FISA have seeped out, and they have been giving the intelligence community headaches at least since the Clinton administration. Passed back in 1978, the law was designed to regulate domestic national security surveillance by placing a layer of judicial review between the intelligence community and its targets. If the target was physically inside the United States, the government would get a secret warrant from the so-called FISA Court before tapping him. If the target and the collection were abroad, by contrast, the government needn’t bother. The essential compromise made sense: Surveillance of foreigners abroad is a pure intelligence function, after all, and it doesn’t violate the Fourth Amendment’s ban on unreasonable searches and seizures. Wiretapping at home, however, has been a tool used against political dissenters, and it raises concerns at the core of the Fourth Amendment.

Advances in technology, however, have broken down the neat conceptual divide between foreign and domestic surveillance. Today, an e-mail sent from one foreigner abroad to another might pass through American servers, making it subject to FISA. Moreover, because of cell phones and other devices that work across borders, a tap on what appears to be a foreign device might turn out to involve domestic intelligence collection–if the target, say, had shown up here with his phone or Blackberry. The perverse result seems to be that increasing numbers of foreign communications are now subject to FISA court approval. Sometimes, intelligence operatives may not even know whether the collection they contemplate requires going to the court or not. Recent non-public decisions by the FISA Court seem to have compounded these problems, creating a huge backlog of FISA applications that is impairing intelligence collection.

All of which led Senate Intelligence Committee Chairman Jay Rockefeller to announce that he has “become convinced that we must take some immediate … step to improve collection of foreign intelligence in a manner that doesn’t compromise civil liberties of U.S. citizens.” Indeed, to their credit, Democrats engaged seriously over how to ameliorate the problem.

But they were not completely willing either to give the administration what it said it needed–and what, on its face, seems to be a restoration of the original philosophical compromise that FISA represented. The final bill represents a big win for the Bush administration and congressional Republicans, but it was passed after a week of partisan acrimony and with a six-month sunset–meaning that the administration will now have to fight the same battle again. The reluctance on the part of Democrats may simply reflect different views on the scope of proper surveillance authorities. But it also reflects the fact that it is beyond unreasonable to ask Congress to trust Alberto Gonzales.

Imagine for a moment that a real attorney general had gone to Congress, described this problem, and asked for help. Imagine he were not someone who had visited the hospital bed of a gravely ill man to induce him to assume powers he had relinquished to sign off on a program the Justice Department had determined lacked a sufficient legal basis. Imagine he were not the sort of man who, having failed, would then convince the president to go ahead with the program anyway. And imagine he were not the sort of man who would then claim in sworn congressional testimony that the Terrorist Surveillance Program had not provoked significant controversy within the administration. Imagine, for example, that former Deputy Attorney General James Comey had appealed for this change or that the request had come from someone of the stature of Ed Levi–the attorney general who restored the credibility of the Justice Department after the Watergate era and who started the policy process that led to the original FISA. It is not hard to envision a less skeptical reception.

Congress, very simply, needs to force Gonzales from office. It can’t use the FISA legislation to do so; the stakes are simply too high. It can, however, exert budgetary pressure on all non-essential administration priorities for the department. The Senate can decline to confirm any Justice Department nominees while Gonzales remains at the department’s helm. And Congress can decline to consider any non-emergency administration policy proposals in the criminal justice arena. It needs to make clear to Bush that the costs of keeping Alberto Gonzales will be unbearably high.

One reason for this–by no means the only one–is to make possible a serious discussion of the future of FISA. When the attorney general of the United States goes to Congress to ask for a change of this importance, the country should talk about the change, not about whether he’s a liar.