John Yoo’s Defense of the NSA Program, Part II

One of our readers defends Yoo’s inconsistent positions on FISA and the War Powers Act by arguing that the secrecy of the NSA program prevented Bush from defending his decision to ignore FISA, whereas no such secrecy concerns prevented Clinton from defending his decision to ignore the War Powers Act.

There are two problems with that argument. First, there is no evidence that Bush offered a legal justification for ignoring FISA when his administration briefed a few – illegally few – members of Congress about the NSA program. Indeed, it seems clear that Bush never revealed anything near the full scope of the program to Congress in any of those meetings. As Newsweek reported:

When the NSA eavesdropping story leaked, the Bush administration immediately claimed that it had briefed congressional leaders on several occasions. But the briefings appear to have been sketchy and ultra-secretive. Sen. Tom Daschle, the Senate Democratic leader at the time, recalled being briefed in 2002 and again in 2004. Interviewed by NEWSWEEK, he was reluctant to get into classified details, but he did say, “The presentation was quite different from what is now being reported in the press. I would argue that there were omissions of consequence.” At his briefing in the White House Situation Room, Daschle was forbidden to take notes, bring staff or speak with anyone about what he had been told. “You’re so disadvantaged,” Daschle says. “They know so much more than you do. You don’t even know what questions to ask.”

Moreover, the secrecy defense presumes that the Bush administration kept the NSA program secret because it believed that was the only way the program would succeed. But even that assumption is questionable – as George Will has pointed out, is it highly likely that al-Qaeda already suspected that its phone calls to the U.S. might be monitored:

WILL: I want to go back to the NSA thing. The administration says talking about this tips off the enemy. Now, the idea that our enemies think that the most technologically sophisticated nation in the world isn’t using all its advantages to eavesdrop on them is peculiar. In 1978, we passed FISA. That alerted them, if any alerting was needed, that we were indeed listening in, passing the Patriot Act alerted them to what we were going to do and were going to not do. What I do not understand in this whole bizarre week we just had, George, our arguing about the NSA surveillance, the administration saying desperately important to pass the Patriot Act.

Indeed, the NSA program itself, even the secret version, was a massive failure:

WASHINGTON – In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month.

But virtually all of them, current and former officials say, led to dead ends or innocent Americans.

F.B.I. officials repeatedly complained to the spy agency that the unfiltered information was swamping investigators. The spy agency was collecting much of the data by eavesdropping on some Americans’ international communications and conducting computer searches of phone and Internet traffic. Some F.B.I. officials and prosecutors also thought the checks, which sometimes involved interviews by agents, were pointless intrusions on Americans’ privacy.

[snip]

President Bush has characterized the eavesdropping program as a “vital tool” against terrorism; Vice President Dick Cheney has said it has saved “thousands of lives.”

But the results of the program look very different to some officials charged with tracking terrorism in the United States. More than a dozen current and former law enforcement and counterterrorism officials, including some in the small circle who knew of the secret program and how it played out at the F.B.I., said the torrent of tips led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive.

“We’d chase a number, find it’s a schoolteacher with no indication they’ve ever been involved in international terrorism – case closed,” said one former F.B.I. official, who was aware of the program and the data it generated for the bureau. “After you get a thousand numbers and not one is turning up anything, you get some frustration.”

Why, then, did Bush keep the NSA program secret even though it didn’t work? The answer is obvious: because he knew the program was illegal. Recall that not even John Ashcroft – no friend of civil liberties, he – would sign off on the program:

On one day in the spring of 2004, White House chief of staff Andy Card and the then White House Counsel Alberto Gonzales made a bedside visit to John Ashcroft, attorney general at the time, who was stricken with a rare and painful pancreatic disease, to try—without success—to get him to reverse his deputy, Acting Attorney General James Comey, who was balking at the warrantless eavesdropping.

And, of course, Bush already knew Congress would not approve the wholesale changes to FISA that would have been necessary to make the NSA program legal:

Q If FISA didn’t work, why didn’t you seek a new statute that allowed something like this legally?

ATTORNEY GENERAL GONZALES: That question was asked earlier. We’ve had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be — that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that — and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

To sum up: Bush did not fail to publicly defend the NSA program because it was secret; the NSA program was secret because it was impossible to publicly defend. The claim that Yoo’s defense of Bush and criticism of Clinton is hypocritical, therefore, remains sound.