No Verify, No Trust

Andrew Cohen On The Justification For Domestic Spying

(CBS) 
Soon after the hearing started, for example, Sen. Patrick Leahy (D-Vermont) bore in on the question of whether the administration planned to authorize the domestic spy program before the Congress passed its Authorization for Use of Military Force back on Sept. 14, 2001. This is important to know because if the White House already knew then that it planned to rely upon the ambiguous "necessary and appropriate" language of the AUMF to justify the program, and didn't say so, it effectively pulled a fast one on Congress, which certainly wasn't thinking about allowing electronic surveillance without a court order when it gave its consent to the White House to go after Osama bin Laden.

So Sen. Leahy asked: "Did you reach that conclusion before the Senate passed the resolution on Sept. 14, 2001?" Gonzales answered: "Senator, what I can say is that the program was initiated subsequent to the authorization to use military force ... and our legal analysis was completed prior to the authorization of that program." So your answer, Leahy said, "is that you did not come to that conclusion before the Senate passed the resolution on Sept. 14, 2001?" "Sir," Gonzales responded, "I certainly had not come to that conclusion. There may be others in the administration who did." (Emphasis added). "Were you aware of anybody in the administration that came to that conclusion before Sept. 14, 2001?" Leahy asked. "Senator," Gonzales replied, "sitting here right now I don't have any knowledge of that." Clearly, Leahy was not satisfied with that answer.

Then it was Sen. Charles Schumer's (D-N.Y.) turn. He asked the attorney general: "Has the government searched someone's home, an American citizen, or office, without a warrant since 9-11, let's say?" Gonzales replied: "To my knowledge, that has not happened under the terrorist surveillance program, and I'm not going to go beyond that." That prompted this retort from Schumer: "I don't know what that — what does that mean, under the terrorist surveillance program? The terrorist surveillance program is about wiretaps. This is about searching someone's home. It's different ... I'm asking you if it has been done, period." Gonzales said: "But now you're asking me questions about operations or possible operations, and I'm not going to get into that, Senator."

Even the Judiciary Committee Chairman, Arlen Specter (R-Pa.), tried to pin down the attorney general about the scope of the program. "What assurance can you give to this committee and beyond this committee to millions of Americans who are vitally interested in this issue and following these proceedings? Gonzales responded, " ... The program as operated is a very narrowly tailored program. And we do have a great number of checks and balances in place to ensure, I am told, by the operations folks that, to a great degree of certainty, a high degree of confidence, that these calls are solely international calls."

The reason these snippets of dialogue are important is that they evidence a realization on the part of important senators that, even now, the administration is not leveling with the legislative branch when it comes to the ways in which the war against terrorism is being fought. The attorney general did not apologize for his lack of specificity Monday; in fact, he and several Republican committee members noted that the executive branch has to maintain operational secrecy even from its own allies in the war on terror. That's a logical argument. But it surely is one that makes it harder for the Congress to feel good about continuing to give the administration free rein to fight.

The White House wants us all to trust it to run this controversial program. And yet it is rebuffing efforts on the part of the Congress to independently verify how the program works, what it actually does, and whom it may affect. The oversight for the NSA program now resides with the NSA, and otherwise within the executive branch, without any input from the legislative or judicial branches. Of the Soviets, the late President Reagan once said, famously, "trust but verify." Makes sense, right? But which ought to come first? And why should the president and his oracles expect to earn one without offering the other?