If anyone can show me that the National Security Agency, under order from President Bush or top aides, eavesdropped on Hillary Clinton or Ted Kennedy or some prominent partisan critic, I'll change my tune and see what this administration is doing as a threat to civil liberties. Until then, I can only see the attacks on an NSA surveillance program — on Monday the Senate Judiciary Committee grilled Attorney General Alberto Gonzales over the program that allowed officials to data-mine information from international phone calls and the Internet — as ill-conceived, partisan and dangerous.
Ill-conceived? The Sept. 11 commission's purpose was to figure out why authorities did not connect the dots and prevent those deadly terrorist attacks. Now, Washington is scolding the NSA for using state-of-the-art technology to try to connect more dots.
Partisan? Yes, there are Republicans who have questioned the NSA program. Still, most Democrats won't give the Bushies the same break they'd hand to a Democratic administration in a heartbeat.
After all, the Clinton administration conducted warrantless searches in an American's home. His name was Aldrich Ames, and he later pleaded guilty to spying for the former Soviet Union while working for the CIA. As The Washington Post reported in 1994, "government officials decided in the Ames case that no warrant was required because the searches were conducted for 'foreign intelligence purposes.'" There was no huge outcry that Clintonia should have obtained a warrant.
Former Clinton Justice official Jamie Gorelick contended in a letter to the Judiciary Committee that the president had "the inherent authority to authorize foreign intelligence physical searches" — but that, after Ames, the administration later sought to change the FISA law to include physical searches because "it would be better" to have congressional and judicial oversight of those searches.
It would be better? That's it? Gorelick won't say that the Bush NSA program is illegal, as some senators charge, but only that her testimony for the FISA change in 1994 "does not address that question." That should tell you that the legality of the NSA program is, at worst, debatable.
Dangerous? Actually, it's only dangerous if Washington manages to bury vital intelligence information that allows a terrorist attack which might have been thwarted to occur.
Critics ask: Why didn't the NSA simply seek warrants retroactively? They're as easy to get as candy. Why, the FISA courts only rejected four out of tens of thousands.
The answer is clear. As The Washington Post reported Sunday, much of the NSA data-mining produced leads that led nowhere. They didn't provide probable cause for a warrant.
Even in cases where a FISA warrant would seem to be a sure thing — as when FBI agents wanted to get into (now admitted al-Qaida terrorist) Zacarias Moussaoui's laptop — it was not.
This is straight from the Sept. 11 panel report: Even though an FBI agent had figured out that admitted terrorist Moussaoui was "an Islamic extremist preparing for some future act in furtherance of radical fundamentalist goals,'' even though Moussaoui drew suspicion taking lessons for flying the Boeing 747 without the requisite background, even though Moussaoui had $32,000 in the bank but no plausible explanation why, "the case agent did not have sufficient information to connect Moussaoui to a 'foreign power'" — which was a "statutory requirement for a FISA warrant."
Is the Bush administration doing everything right? Hell, no. The Bushies' argument that Congress essentially authorized these wiretaps when it authorized the use of military force after the Sept. 11 attacks is disingenuous and infuriating.
Lucky for Dubya, the Senate Judiciary Committee is filled with the most bombastic windbags in America — they are more irritating saying absolutely nothing than Gonzales is saying next to nothing.
Sen. Arlen Specter, R-Pa., the committee chair, has pushed for the administration to ask the FISA court to review the NSA program. "You think you're right, but there are a lot of people who think you're wrong," Specter told Gonzales. "What do you have to lose if you're right?"
The question should be: What does America have to lose? If FISA found against the NSA program, one would hope Congress would pass laws designed to give intelligence officials what they need — as long as there's oversight to prevent abuses. But that may be asking too much.
The best way to define the most irritating senators on the Judiciary Committee: They voted for the Patriot Act before they voted against it.
