A Tale of Capitulation

Marty Lederman

There have been several reports in recent days about just how the Administration managed to induce Congress to give the NSA vast new surveillance authority -- authority that the Administration had not even bothered to ask for when Republicans controlled Congress because at that time -- even immediately after September 11th -- it appeared to be a legislative nonstarter.

The best such account thus far is Joby Warrick and Walter Pincus's piece in today's Post. Warrick and Pincus report, among other things, that two different FISA judges had rejected the January deal as unlawful, after which DNI McConnell "appealed directly to the FISA court, meeting with judges to describe the impact the decisions were having. The judges were sympathetic but said they believed that the law was clear." In other words, the entire FISA Court -- typically very deferential to the NSA -- concluded that the Administration's legal theory was untenable. (And recall that that legal theory was presumably much more modest than those the Administration had relied upon from 2001 to 2007 to engage in warrantless surveillance.)

What appears to have happened, in short, was that under its warrantless "Terrorist Surveillance Program" in place from 2001 to 2007, the NSA intercepted a lot of reportedly valuable communications involving terrorists. The January deal with a FISA judge, struck under pressure as both the Democratic Congress and the courts were challenging the TSP, limited the scope of the surveillance, but it remained extensive. When the entire FISA Court nixed the deal, however -- because it was flatly illegal -- the NSA surveillance became far less effective. Each interception over domestic wires required a FISA court order, and there were thousands of such requests, quickly forming a significant backlog.

At which point McConnell came to Congress, explained the situation, and the Democrats readily agreed to grant the NSA the authority to freely intercept all foreign-to-foreign communications. This wasn't good enough for McConnell, however -- he wanted to be able to freely intercept all foreign-to-domestic communications, as well, even those that have nothing to do with terrorism.

And that is, in effect, what he got.

[UPDATE: I forgot to mention the most distressing part of the story:

"I want to move forward," [McConnell] said. But Democratic leaders wanted something in return: the release of long-sought administration documents describing the controversial warrantless wiretapping program Bush had authorized in the weeks after the Sept. 11, 2001, terrorist attacks.

The administration declined to release the documents, which include Bush's presidential order allowing the wiretaps, as well as the administration's legal opinions justifying the action. Administration officials described a particular showdown with key Democratic leaders -- including Rockefeller and Carl M. Levin (Mich.), chairman of the Senate Armed Services Committee, in which Democrats proposed a trade of sorts. While the exchange was not a quid pro quo, the senators essentially said, "You give us the documents we want, and we'll give you the legislation," according to an administration official present, who said the response was "no." McConnell argued that the Democrats were "looking backwards" and that he was the "forward-looking guy," a witness said.

It's ridiculous that the Congress cannot so much insist upon learning what the NSA was doing for more than five years, and investigate the legal claims on its behalf. That they can't even accomplish these things in exchange for giving the Administration everything it wants by way of legislation speaks volumes about the current state of our constitutional checks and balances.]

Although the Post story today is great, there are two problems with it.

First, Warrick and Pincus write this:

Other provisions in the White House-backed bill added to the Democrats' discomfort. For instance, a Democratic bill would have authorized warrantless surveillance "directed" at individuals reasonably believed to be outside the United States. But the administration's draft -- and the one passed into law -- permitted collecting data "concerning" people reasonably believed to be outside the country. Democrats said the difference between collection efforts "concerning" foreigners and "directed" at foreigners could be enormous, allowing intelligence officials far greater leeway.

I think this is wrong. The enacted bill still requires that the surveillance be "directed at" someone overseas -- which is plenty ambiguous, and plenty vast. The reference to collection "concerning persons reasonably believed to be outside the United States" appears in section 105B, which I do not read to establish an additional source of surveillance authority, distinct from the "directed at" authority afforded in section 105A. (See the fourth paragraph of this post.) If I'm wrong about that -- if Warrick and Pincus are right -- then this new law is infinitely broader, and more troubling, than we've previously assumed.

Second, neither Warrick and Pincus, nor other sources, have yet explained just why the Democrats did not stick to their guns and pass a bill giving the Administration what it publicly had insisted upon -- i.e., warrantless surveillance of foreign-to-foreign communications. Here, for example,is a column by E.J. Dionne two days ago, entitled "Why the Democrats Caved." Dionne writes:

Shortly before noon last Saturday, about 20 House Democrats huddled in Speaker Nancy Pelosi's office to decide what to do about a surveillance bill that had been dumped on them by the Senate before it left town.

Many of the Democrats were furious. They believed they had negotiated in good faith with Mike McConnell, the director of national intelligence. They sought to give the Bush administration the authority it needed to intercept communications involving foreign nationals in terrorism investigations while preserving some oversight.

But the administration held out for granting McConnell and Attorney General Alberto R. Gonzales more power while seriously circumscribing the role of the Foreign Intelligence Surveillance Court. The Senate's Democratic leadership, lacking the votes to pass a measure more to the House's liking, gave the administration what it wanted.

At one point, according to participants in the Pelosi meeting, the passionate discussion veered toward the idea of standing up to the administration -- even at the risk of handing President Bush a chance to bash Democrats on "national security," as is his wont.

Several members from swing districts -- including Reps. Heath Shuler of North Carolina and Patrick J. Murphy of Pennsylvania -- expressed openness to having Congress stay in town to fight if important constitutional issues were at stake.

But the moment passed. Even some very liberal Democrats worried about the political costs of blocking action before the summer recess. That Saturday night, the House sent the president a bill that, as a disgusted Rep. David Wu (D-Ore.) put it, with just a touch of exaggeration, "makes Alberto Gonzalez the sheriff, the judge and the jury."

Most Democrats opposed the bill, but 41 (including Shuler) voted yes, allowing it to pass.

Notice the subtle elision here: "The moment passed." As if there were no human agency involved. Obviously, what happened is that the Democratic leadership decided not to insist that Democrats could vote only to allow warrantless foreign-to-foreign surveillance. Presumably, the Democrats could have simply voted in favor of the Democratic bill, giving the Administration what it professed to need, and sent that bill to the President for his veto. But the leadership chose not to instruct their caucus to do so. And no one has yet quite uncovered the story of why Speaker Pelosi and crew did not simply insist on that course of action.
Posted 5:42 AM by Marty Lederman [link]