At every turn in this latest of Bush administration scandals -- the National Security Agency's spying on Americans -- what the White House first claimed in the program's defense proved to be either untrue, implausible, exaggerated or unverifiable. At every turn, the White House retorted with self-serving interpretations of law that evade the obvious: Congress writes the laws that control intelligence gathering. With some exceptions for the most extreme circumstances that call for presidential discretion, the White House is compelled to follow those laws. Courts interpret the laws. The White House is compelled to follow those interpretations. Unless the Constitution has been suspended (something only Congress can do), making things up as it goes along is not a White House prerogative. But it's been policy.
This isn't to argue against spying in all circumstances. A degree of secret surveillance may be necessary even in the best of free societies. It's done to prevent crime. It should be done to prevent acts of terrorism. But it's never done -- or never should be done -- without legal rules that assume strict and verifiable oversight, whether by Congress or the courts. Warrants certifying probable cause for surveillance are -- or were -- the absolute minimum for any spying in the United States, no matter the ends in question. Short of that, the spying is not ensuring that this society remains free. It's taking on the methods of totalitarian regimes. Nothing justifies that.
Watch President Bush try justifying it anyway. When forced to disclose the secret spying program in December, he said it was limited in scope and targets. Untrue. Within days, The New York Times, which broke the original story, disclosed that the operation was much wider than the president claimed. The president claimed that "leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it." Exaggeration. The administration briefed only a few committee leaders, vaguely, secretly and without written records. The Congressional Research Service, a non-partisan arm of Congress, reported this week that the administration's bare-bones reports to Congress violated the National Security Act's requirements of keeping intelligence committees "fully and currently informed."
The administration repeatedly claimed the spying affected terrorism suspects and communications involving Americans and people out of the country. That proved untrue or exaggerated. Last week, the Times disclosed that the FBI has been swamped by NSA wiretap leads that led overwhelmingly to dead ends and innocent Americans.
"The activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad," Bush said. Unverifiable. He refuses to provide even a hint of a successful intercept other than one announced three years ago by his Justice Department -- the capture of an Ohio truck driver who plotted to destroy the Brooklyn Bridge by taking a blow torch to one of its suspension cables, a feat so absurd that the Ohioan abandoned the project. He's serving 20 years in a federal prison.
Still, the administration soldiers on. The danger with such constitutional shenanigans is that the public might see them as protective of its security rather than as threats greater than a terrorist attack. But the public isn't being fooled. An Associated Press poll earlier this month asked whether the government should be allowed to spy domestically without a warrant. Forty-two percent of respondents said yes, 56 percent said no. Laws governing domestic spying are intricate and may even be outdated. But complications cannot at any point obscure the clarity of constitutional protections. Warrantless spying on Americans is illegal, period.
© 2006 News-Journal Corporation