How did we know that O.J. Simpson killed his ex-wife? One the one hand, we had DNA evidence, we had a large wound on his hand, we had a bloody glove on his property and blood smears in his car. We had his strange flight in the White Bronco. There was a lot of stuff. But, at least in theory, all that evidence could be explained away. What really tipped us off that O.J. killed his ex-wife was that he showed so little interest in finding the person that killed the mother of his children in cold blood…almost sawing her head off in her front-yard.
We all know how we would react if it happened to our family. And if we were then accused of the crime, we know that we would scream from the hilltops that we were being set-up. Sometimes you can look at the behavior of the accused and infer from it that the accused is surely guilty. That is the case with the Bush administration and the NSA.
The first, and most important indication that they are guilty comes from the leakers themselves. We don’t know a whole lot about them. But we do know that they numbered “nearly a dozen“, that they felt they were being asked to participate in a program that was illegal, and that whatever merits the program might have had did not rise to a level where they could justify it in their minds. This led them to enter into a conspiracy to disclose national security information to James Risen of the New York Times. So, in addition to feeling the program was illegal and of questionable merit, they felt strongly enough about it to put their careers and possibly their freedom on the line.
It is inconceivable that nearly a dozen people, people versed in the ethos of extreme secrecy of the NSA, would take such risks if the program was limited to spying on suspected terrorists calling into or out of the United States.
Arlen Specter
So, right off the bat, we have an extremely strong suspicion that the Bush administration’s assertions and characterizations of the program are false. Whatever the NSA is doing is more sinister and a clear violation of the law that cannot be justified before the American people.
Another damning indictor is that nothing the Bush administration has said explains why the existing FISA law and court could not accommodate the NSA program. The court already allowed surveillance to be authorized retroactively, and Congress had already increased the window for seeking authorization to three full days. They would have agreed to extend that period to a week, or two weeks without raising much of a fuss.
Further bolstering this conclusion is the behavior of the Republicans, and particularly the Bush administration. First, they used the only legal justification available to them: the unitary executive theory, which holds that the President, in a time of war, cannot be restrained by Congress in carrying out his duties as commander-in-chief. Having established that the laws of Congress do not and cannot apply to the activities of the NSA, they next went about the task of preventing any disclosure of what the programs actually did. Evidence of guilt is everywhere. Alberto Gonzales gave scant evidence in his testimony before Arlen Specter’s Judiciary Committee and then sent a follow-up letter to clarify that his testimony was only accurate if it was narrowly construed to apply, not to all the activities of the NSA, but only to the narrow program he dubbed the “Terrorist Surveillance Program”. In other words, he lied to Congress and wanted to avoid any criminal liability that might cause him in the future.
The next step was to deny security clearances to the Justice Department investigators so that they could not determine the extent, degree, or legality of the NSA programs. Then they utilized the State Secrets Privilege to quash an investigation into the warrantless surveillance of the San Francisco telecomminications hub.
Meanwhile, Pat Roberts, the chairman of the Senate Select Committee on Intelligence, made a number of procedural moves to stonewall an investigation by his own committee. First, he adjourned his committee before they could vote to initiate an investigation, then, when they reconvened, he forced through a vote to block an investigation into the NSA’s warrantless domestic spying program and made a deal with the White House to produce legislation allowing “wiretapping without warrants for up to 45 days.”
Sen. Roberts also brokered a deal that violates the 1947 National Security Act, wherein the government can avoid briefing the full intelligence committees about the activities of the NSA.
There have been other efforts to stonewall, including making specious legal arguments against Freedom of Information Act requests, and refusing to take testimony from NSA whistleblower Mike Tice.
Taken in its totality, and adding in the revelations that broke in today’s USA Today, it’s obvious that the NSA has not restricted itself to spying on international calls linked to suspected terrorists.
