Follow Up: More Proverbial Hits the Fan

A federal judge has resigned from the secret court that oversees government surveillance in intelligence cases in protest of President Bush's secret directive to allow the National Security Agency (NSA) to spy on Americans without any oversight.

The Washington Post reported today that U.S. District Judge James Robertson, a member of the Foreign Intelligence Surveillance Court, sent a letter to Supreme Court Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation. Robertson did not provide an explanation, but has been critical of Bush in the past.

The Post said that two associates familiar with his decision say that Robertson privately expressed deep concern that the warrantless surveillance program secretly authorized by the president in 2002 was legally questionable and may have tainted the court's work.

Robertson, who was appointed to the federal bench by President Clinton in 1994 and was later selected by then-Chief Justice William H. Rehnquist to serve on the FISC, declined to comment.

Meanwhile:

* Horror of horrors, President Bush is mixing apples and oranges when he says the New York Times story on his secret directive was giving aid and comfort to the enemy. He cited a “late 1990s” story on Osama bin Laden’s telephone habits as being similarly egregious.

Not so fast there, Mr. President.

On its face, the Aug. 21, 1998, story stating that OBL used a satellite phone in the conservative Washington Times two weeks after the Al Qaeda-led American embassy bombings in Africa and the day after President Clinton ordered missile strikes in Afghanistan and the Sudan, was indeed damaging. OBL stopped using the phone after the story appeared.

As former National Security Council staffed Daniel Benjamin writes in Slate today:

If there was one piece of intelligence in the file on Bin Laden that might have spelled the difference between 9/11 happening or not, the satellite phone was it. When Osama hung up for the last time, the United States lost its best chance of finding him and, perhaps, preventing the deaths of 3,000 people.

How would OBL have been found? Here's a hint: Two years earlier, the Russians had taken out a Chechen insurgent leader with a missile that homed in his satellite phone signal.

On its face, the Dec. 16 story in the liberal New York Times on the spying directive was not damaging to anything but Bush’s dwindling political capital. It is widely known that the NSA uses surveillance intercepts hither and yond. What was not known was that the president had approved their use on Americans without the messy inconvenience of having to go through channels.

* You have to figure that Vice President Cheyney has little to lose at this juncture.

The administration's Death Star has weighed in on the secret directive and candidly acknowledges that it is part of a broader effort (for which he can take ample credit) to reassert presidential powers that he said had been "dangerously" eroded after the Vietnam War and Watergate. (See also the post above this one, "It's All About Power.")

Said the veep:

I believe in a strong, robust executive authority, and I think that the world we live in demands it. . . . You know, it's not an accident that we haven't been hit in four years.

I winced when I read that last line, which seems to be inviting the kind of trouble that sooner or later will again be visited upon the U.S.

* The NSA surveillance program has intercepted domestic communications despite a requirement that one end of intercepted conversations take place on foreign soil, according to a story in today's New York Times.

Officials say that the NSA's interception of a small number of communications between people within the United States was apparently accidental, and was caused by technical glitches.

The Times reports that:

Telecom experts say there are troubling logistical questions about the program. At a time when communications networks are increasingly globalized, it is sometimes difficult even for the NSA to determine whether someone is inside or outside the United States when making a cellphone call or sending an e-mail message. As a result, people that the security agency may think are outside the United States are actually on American soil.

* Some much needed perspective from David Ignatius in today's Washington Post:

The national security structure that the Bush administration created after Sept. 11, 2001, began to crumble this month because of a bipartisan revolt on Capitol Hill. Newly emboldened legislators forced the administration to accept new rules for the interrogation of prisoners, delayed renewal of the Patriot Act and demanded an investigation of warrantless wiretapping by the National Security Agency.

President Bush has bristled at these challenges to his authority over what has amounted to an undeclared national state of emergency. But the intelligence professionals who have daily responsibility for waging the war against terrorism don't seem particularly surprised or unhappy to see the emergency structure in trouble. They want clear rules and public support that will allow them to do their jobs effectively over the long haul, without getting second-guessed or jerked around by politicians. Basically, they don't want to be left holding the bag -- which this nation has too often done with its professional military and intelligence officers.

* And a counter argument, of a sort, from U.S. District Judge Richard Posner, also in today’s Post:

We've learned that the Defense Department is deeply involved in domestic intelligence (intelligence concerning threats to national security that unfold on U.S. soil). The department's National Security Agency has been conducting, outside the framework of the Foreign Intelligence Surveillance Act, electronic surveillance of U.S. citizens within the United States. Other Pentagon agencies, notably the one known as Counterintelligence Field Activity (CIFA), have, as described in Walter Pincus's recent articles in The Post, been conducting domestic intelligence on a large scale. Although the CIFA's formal mission is to prevent attacks on military installations in the United States, the scale of its activities suggests a broader concern with domestic security. Other Pentagon agencies have gotten into the domestic intelligence act, such as the Information Dominance Center, which developed the Able Danger data-mining program.

These programs are criticized as grave threats to civil liberties. They are not. Their significance is in flagging the existence of gaps in our defenses against terrorism. The Defense Department is rushing to fill those gaps, though there may be better ways.