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December 21, 2005

Impeach George W. Bush. Impeach Richard Cheney. Do It Now

Peter Baker and Charles Babbington of the *Washington Post* bury their lead in paragraphs 13 through 17: Deputy Director of Intelligence Michael Hayden says that the Bush administration broke the law because it would have been "inefficient" to follow it: following the law "'involves marshaling arguments' and 'looping paperwork around'." Attorney General Alberto Gonzales says that the Bush administration did not dare ask Congress to authorize the program, yet claims to believe that Congress did.

Impeach George W. Bush. Impeach Richard Cheney. Do it now.

Bush Addresses Uproar Over Spying: Nor did [Bush] explain why the current system is not quick enough to meet the needs of the fight against terrorism. Under the Foreign Intelligence Surveillance Act, the NSA in urgent situations can already eavesdrop on international telephone calls for 72 hours without a warrant, as long as it goes to a secret intelligence court by the end of that period for retroactive permission. Since the law was passed in 1978 after intelligence scandals, the court has rejected just five of 18,748 requests for wiretaps and search warrants, according to the government.

Air Force Gen. Michael V. Hayden, who was NSA director when the surveillance began and now serves as Bush's deputy director of national intelligence, said the secret-court process was intended for long-term surveillance of agents of an enemy power, not the current hunt for elusive terrorist cells.

"The whole key here is agility," he said at a White House briefing before Bush's news conference. According to Hayden, most warrantless surveillance conducted under Bush's authorization lasts just days or weeks, and requires only the approval of a shift supervisor. Hayden said getting retroactive court approval is inefficient because it "involves marshaling arguments" and "looping paperwork around."

In asserting the legality of the program, Bush cited his power under Article II of the Constitution as well as the resolution authorizing force passed by Congress after the Sept. 11 attacks. The resolution never mentions such surveillance, but Attorney General Alberto R. Gonzales said it is implicit and cited last year's Supreme Court decision in Hamdi vs. Rumsfeld , which found that the force resolution effectively authorized Bush to detain U.S. citizens indefinitely as enemy combatants. But the same ruling held that detainees are entitled to challenge their imprisonment in court.

"This is not a backdoor approach," Gonzales said at the White House. "We believe Congress has authorized this kind of surveillance." He acknowledged that the administration discussed introducing legislation explicitly permitting such domestic spying but decided against it because it "would be difficult, if not impossible" to pass.

Posted by DeLong at December 21, 2005 05:18 PM