The Right Coast

February 09, 2006
FISA kerfuffle update
By Tom Smith

The WSJ gets it right on FISA again. If only we all could be so reasonable.

How much more do you have to know about FISA than that it was passed in the wake of the Church hearings and even Jimmy Carter signed it reluctantly?

The Bush White House is so infuriatingly hard to predict. One moment they nominate what's-her-name to the Supreme Court, the next moment they nominate Sam the Great. (We pause here for a moment of gloating.) On the NSA business, one moment they are ably defending the right of the President to defend the country, the next they are scurrying about because some Congressperson finds the AG's defense of the legality of the program unpersuasive. Since when should anybody care what the legal opinion of anybody in Congress is? Do they even have legal opinions? Some Congressperson says s/he is very concerned blah blah blah about the constitutionality of the NSA program and the White House is supposed to care? I do not pretend I am some old Washington hand, but I worked in the White House for a year and dealt with Senatorial staff on various issues, and practiced law in DC for 4 years after that, and was involved in some "legislative" work (i.e. trying to get egregious special interest legislation passed, because we were paid by our clients to do so), and the notion that anybody, even said Senators and Congresspeople themselves, should take seriously their misgivings regarding the legality of NSA program or any other moderately complicated legal res is beyond absurd. It is downright silly. They do not have legal misgivings. Not really. They only have perceptions of political opportunities. With practice, they can learn to pursue these opportunities by expressing legal misgivings. Some of them can even pronounce "constitutionality," but nothing in their brains corresponds to this concept. And now the House intelligence committee, all 90 of them, wants to get involved. There is some Congressperson from New Mexico I have never heard of before who the LA Times tells us breathlessly is a former Air Force officer (officer? What does that mean? Lt. junior grade? General? what?) and a former member of the NSC staff (golly! a true expert!), and she has decided her subcommittee should find out all about how the NSA does things, dad gummit. Maybe the NSA should start a blog and just let us all know hour by hour how the top secret spying is coming along. "Picked up an interesting call between LA and Islamabad this morning. Something about dropping off "the big boom boom package" at the airport. Sounds interesting!" Or "spying will be light today; everyone's off to the crypto convention at MIT." And now it looks like FISA judges are getting into the leaking act. And these are the people we want deciding whether the phone numbers found on Johnny Jihad's laptop maybe tapped?

Let me recreate for you what is going through the average Senator's mind as he ponders deeply on the NSA issue: "Hmmm. If we get new legislation through updating FISA, that will make us look responsible, protecting civil liberties. That will help me if some other shoe drops. On the other hand, if a city gets blown up, and better intelligence might have stopped it, that will just be some judge's fault. Looks like a no lose no brainer . . . " If you were to ask said Senator, "What do you think is really necessary, in terms of domestic intelligence gathering, to prevent another catastrophic attack on the US?" you would get some waffle back, but if you could scan his brain, you would just get the brain state for a giant "Huh?" They have not pondered this issue, and they are not going to. It is not what they do. And this is among the statespeople of the Senate. In the depths of the House, you just have the equivalent of tossing a piece of ripe cheese into a barrel of mice. Oh boy! Now's my chance! I can get in the paper! This is just like Boys' State! Does the White House realize this? That they are only encouraging them? You cannot give these people a little information and satisfy them. It is not as if they really do have "genuine deep concerns about the legality of blah blah blah." This is the Congress. They see the NSA kerfuffle as a party, and they want to be invited. They want to get in the paper. They want people to think they are important. They want people to give them money. If you think it is a lot deeper than that, you haven't spent a lot of time trying to sell egregious special interest legislation to Congresspersons. I'm sorry. I did not invent our government, I only observe it. It is why we have a President. He should just stop explaining and do his job. If it makes him unpopular, and makes various journalists and pundits say he is a mean, scary president, and it's so scary that he is spying and who knows what else, well, too bad for poor old W. Maybe he will leave office unloved. If it is necessary for the national security, he should do it. It is not necessary that everybody like it. That's why they call it power, for heaven's sake. He should say, "this is necessary for the national defense, and we are going to keep doing it. Too much has been said already about how it works. For the details, you will have to wait until the war is over. If you think otherwise, good luck and we'll see you in court." (On the legal front, here is a question. Take the probability the Supreme Court would take the case where plaintiff wants to tell the President to stop his spying, then multiply it by the probability that the Court will tell the President, so sorry, you have to stop that nasty spying, and we sure hope that doesn't mean Chicago gets turned into a radioactive lake of glass. Now ask: do numbers come that small?) And if Congress tries to pass some stupid FISA the sequel, Bush should veto it, and tell the Congresspersons that he will do so. If the White House tells them firmly they have to find something else to pose over, then the Congresspeople will do so. Bush should also vigorously pursue the leakers, starting with a subpeona for young Reporter Risen. He can be the first to send his Pulitzer acceptance message from jail.

But here is a dead easy prediction for you. Now that all this secret stuff is being shared with our responsible, statespersonlike representatives in Congress, we all are going to be finding out a lot more about it. If you are crazed jihadist conspirator, you will want to stay tuned. You don't need a waterboard to get a Congressperson to talk.