NSA E-Spying Hearing Could Be Futile, Critics Warn

Senators from both sides of the aisle have expressed concerns about the scope and legality of the wiretapping program as well as the possible erosion of congressional authority, since most on Capitol Hill were unaware that the NSA program existed before it was leaked to the media. “I don’t envy his job on Monday,” Frederickson said.

The hearing will be the first official congressional action on the issue. House Democrats held a basement briefing several weeks ago (WID Jan 23 p1). Testifying were Fredrickson, George Washington U. law prof. Jonathan Turley, Center for National Security Studies Dir. Kate Martin and antiwar activist Richard Hersh, whose small peace group was spied on by the govt. Gonzales is the sole witness at Mon.’s 9:30 a.m. hearing. House Judiciary Committee Chmn. Sensenbrenner (R-Wis.) hasn’t said whether he will hold a hearing.

Martin said she was pleased that Congress seemed to be “reasserting its oversight responsibilities” and she hoped lawmakers will announce “a thorough staff inquiry into the program.” Bush’s security-classification claims concerning the program and data it collects don’t preclude shining a much-needed light on govt. spying, she said. “The enactment of FISA itself shows that there can be a public debate and a public inquiry about appropriate legal standards while protecting sensitive national security information and with the assistance of a parallel classified inquiry where necessary,” Martin said.

The ACLU is also sensitive to the need not to undermine investigations or endanger national security. Fredrickson said closed hearings could be used if needed, but a public discussion of the legality of the program could be structured to safeguard information. The govt.’s resistance to providing information to lawmakers, and civil liberties groups making FOIA requests, speaks to the larger issue of “tremendous over-classification” by this Administration, she said.

The same goes for Bush’s treatment of the Patriot Act’s National Security Letter power, Fredrickson said, which lets intelligence agencies tap ISPs, phone companies, credit card providers and other businesses without judicial review. The NSA spying and the Patriot Act go hand in hand, Fredrickson said. Both raise questions about the scope of presidential authority and balancing it with civil liberties. The ACLU has lawsuits pending on both issues.

Lawmakers Left in the Dark

The NSA program got more scrutiny on Capitol Hill on Thurs. Senate Judiciary Committee Ranking Member Leahy (D-Vt.) pushed for the release of key documents from DoJ relating to current and previous policies and procedures governing electronic surveillance. “It is essential that we get these documents,” Leahy said at a news conference after a hearing to consider Paul McNulty’s nomination to be deputy attorney general. “No White House can just pick and choose which laws it wants to follow,” Leahy said: “This President has repeatedly asked Congress and the American people to just trust him on key decisions that have resulted in failed polices with devastating consequences.”

Leahy handed McNulty a letter from 8 committee Democrats seeking documents and correspondence from the days immediately after 9/11, as well as departmental memos and legal opinions from the past 30 years addressing the constitutionality of certain govt. spying. The letter renews the lawmakers’ call for information first made last week, without a DoJ response. Gonzales’s lack of cooperation is at odds with his confirmation hearing testimony a year ago, when he indicated that he would “respond to our letters and that you ‘respect’ and ‘understand’ the oversight responsibilities of the Judiciary Committee,” the senators said. The letter said Gonzales had time for many TV appearances and speeches on the subject but hasn’t responded to their inquiries. The senators said they want their questions answered before Mon. morning’s hearing.

Committee Chmn. Specter (R-Pa.) and Gonzales were to meet late Thurs. to discuss the hearing and which documentation to bring to chambers. Specter, who called the talks “a work in process,” said he and his colleagues have “many, many questions” and probably will schedule more days of hearings. “We are on a very touchy subject and our Committee has been willing to step forward and take it on. We are going to pursue it,” he said.

The issue also arose at a Senate Intelligence Committee hearing on national security threats. Witnesses included National Intelligence Dir. John Negroponte, his deputy Michael Hayden, FBI Dir. Robert Mueller, CIA Dir. Porter Goss, Defense Intelligence Agency Michael Maples, Dept. of Homeland Security Chief Intelligence Officer Charles Allen and Carol Rodley, State Dept. deputy assistant secy. for intelligence. Sen. Rockefeller (D-W.Va.) was among the most vocal of the senators, expressing his frustration that the Administration has refused to brief anyone except Chmn. Roberts (R-Kan.) about the NSA program. The reasons given for withholding the information are “unacceptable and nothing more than a political smoke screen by the White House,” he said. Rockefeller asked what unique element of the NSA initiative justifies keeping Congress in the dark. “A White House PR campaign is not a substitute for the legal requirement to keep members of our Committee fully informed of intelligence activities,” he said.