(updated below)
In an otherwise solid NYT article comparing recently revealed CIA abuses of the past and the Bush administration's current controversial intelligence activities, Scott Shane wrote:
The Bush administration chose to bypass the Foreign Intelligence Surveillance Court, created in 1978 to oversee eavesdropping on American soil. The Senate and House Intelligence Committees, created to make sure past abuses would never be repeated, did little to rein in the N.S.A. wiretapping program or to set limits on interrogation practices until news reports set off a furor.On the other hand, the recent surveillance activities appear so far to have been aimed at mostly people believed to pose a terrorist threat, not a political threat. So far there is no evidence of anything comparable, for example, to the F.B.I.'s relentless pursuit and harassment of the Rev. Dr. Martin Luther King Jr. or the political abuses of Watergate.
This passage, in light of the bolded sentence, is simply misleading. There is no basis whatsoever for claiming that Bush's NSA warrantless (and illegal) eavesdropping activities were "aimed at mostly people believed to pose a terrorist threat, not a political threat." It is true -- as Shane writes -- that "there is no evidence" that the administration used its eavesdropping powers against, say, political opponents, but that fact is not exculpatory, because there is "no evidence" at all, one way or the other, regarding how the administration eavesdropped.
There has been no disclosure by the administration of any kind -- not to Congress, nor to courts, nor to anyone else -- of information revealing who was subjected to the administration's warrantless eavesdropping program, a program which (by its terms and by design) was conducted in complete secrecy. To this day, that remains the overarching unresolved question -- what was the administration doing when it eavesdropped on Americans in secret, on whom did they eavesdrop, how were the targets chosen, what was done with the information? That is precisely the information which nobody -- including even the Senate Intelligence Committee Chairman, Jay Rockefeller -- has been able to discover.
Before writing about this, I called Shane this morning and asked him what the basis was for the assertion that "the recent surveillance activities appear so far to have been aimed at mostly people believed to pose a terrorist threat, not a political threat." He first pointed out that there is no known credible evidence of abuse -- which is true, but irrelevant, precisely because the administration's activities were conducted completely in the dark. He then said that he has spoken with many sources critical of the program, and none of them had ever claimed to know about abuse -- a fact which, particularly since those sources do not have specific knowledge of whose conversations were surveilled, also does not justify Shane's statement.
Shane -- who was very receptive to the questions and candid in answering them -- emphasized that he intended merely to convey the lack of evidence pointing to eavesdropping abuse, but that, unfortunately, is not what the article says. Instead, it makes an affirmative statement, with no basis, that "the recent surveillance activities appear so far to have been aimed at mostly people believed to pose a terrorist threat." Precisely because the administration has refused to disclose what it did, and Congress has passively permitted such stonewalling, there very well could be "no evidence of abuse" even if those eavesdropping powers were used for the most improper purposes imaginable.
This is not merely a matter of nitpicking at the accuracy of Shane's paragraph. For whatever reasons, ever since the NSA lawbreaking was first revealed, most of official Washgington has been perfectly content -- even oddly eager -- to assume that the Bush administraton only broke the law with the purest of motives. There has been so little push to find out what the administration did during those five years when eavesdropping with no oversight because it was just agreed that we would all implicitly believe -- with no investigation -- that they only listened in on the Terrorists and did so for our own Good. Shane's statement this morning bolsters that assumption -- based on nothing -- and further dilutes the perceived need to find out the answers to these questions.
The whole point of FISA, as Shane recognized when we spoke, is that we do not trust government leaders to eavesdrop on us in secret precisely because those powers were continuously abused when exercised with no oversight. Indeed, as Shane himself recognizes in the article, that is exactly what the CIA's "family jewels" demonstrate. For exactly that reason, upon finding out that the President broke the law by eavesdropping on us with no oversight, the assumption ought to be that these powers were abused, rather than to assume that we can simply blindly trust their good faith. At the very least, it is ludicrous to simply take the word of the lawbreakers that they did nothing wrong.
Moreover, the Bush administration's claim that they only eavesdropped on Terrorists has never made sense, given that it is precisely under such circumstances when obtaining a FISA warrant is easiest. One would need to bypass the FISA court only in those circumstances where one was uncertain about the ability to obtain judicial approval -- i.e., when one sought to eavesdrop on someone other than people likely connected to the Terrorists. In all events, it inexcusable that we still do not know the answer to that question, and there is no justification to assume -- as Shane does -- that the administration exercised these powers properly.
To his credit, Shane did raise the other towering, still unresolved question -- namely, what exactly was the administration doing that prompted John Ashcroft, James Comey and others to conclude that the President was breaking the law and threaten to resign over it? Given that such behavior -- whatever it was -- was unquestionably illegal even under the view of the President's own DOJ, and given that this program, at least allegedly, was abandoned more than three years ago, there is no conceivable basis for continuing to conceal from Americans what our government was doing back then. Yet there is very little impetus to find out.
And this lack of impetus will continue to plague us as long as this notion persits, bolstered today by Shane's article, that there is reason to believe that the Bush administration only used its illegal powers against the Terrorists, not with any improper motives or for improper purposes. The point is that we ought not have to assume or speculate about that matter. We ought to know, and Congress ought to force the administration to disclose this.
UPDATE: Having just written about the need for investigations into the NSA program (as well as the apparent lack of Congressional impetus for such an investigation), this is actually quite an encouraging sign. These subpoenas, though, will be significant only if the Judiciary Committee is prepared to follow through with the full-on confrontation that will be required to compel the administration to comply with the demands for disclosure.
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