Investigating the NSA; Congressional and Constitutional Vigilance

Article excerpt


A congressional criminal investigation into the leak to the New York Times of the National Security Agency's warrantless collection and data-mining of e-mails and phone calls in and out of the United States is indeed required because of the highly classified nature of the information. But Attorney General Alberto Gonzales is not a credible conductor of the probe because he was deeply involved as head of the office of counsel at the White House when George W. Bush authorized this NSA program.

Moreover, since the news broke, and keeps on breaking, Mr. Gonzales has been one of the chief defenders of the president's further unleashing of the NSA. This cheerleading hardly inspires confidence that the attorney general will not have already reached his conclusions.

Also, with the Senate conducting its own investigation, there is White House pressure to move that inquiry from Arlen Specter's Judiciary Committee to the Intelligence Committee. But the latter's chairman, Pat Roberts, Kansas Republican, is so indifferent to Fourth Amendment privacy protection that he supports giving the FBI the power, through administrative subpoenas, to seize extensive personal data from Americans not involved in any criminal acts. There is no judicial review of those subpoenas.

Whoever is in charge of the inquiry should call, as a witness, James Comey, who was an effective federal prosecutor of terrorists. In 2004, while then-Attorney General John Ashcroft was hospitalized with pancreatitis, Mr. Comey refused to sign off on certain expansive surveillance operations of the NSA authorized by the president because he was not sure they were legal.

The investigating committee should also squarely confront the repeated claim by the president's defenders that in November 2002, the Foreign Intelligence Surveillance (FISA) Court of Review strongly upheld the president's assertion that his "inherent powers" justified his warrantless extension of the NSA's powers. Said this FISA appellate court: "We take it for granted that the president does have that authority, and assuming that it is so, the Foreign Intelligence Surveillance Act could not encroach on the president's power," adding that all other courts ruling on this issue had agreed.

But this taking for granted of the legality of what we now know, so far, of the vast data-mining that the NSA has engaged in by presidential order, has not been tested by the Supreme Court. …