Yet Another Update on Domestic Spying

I said a while back that President Bush may have finally done his dash (as the Aussies like to say) over his secret approval of the National Security Agency’s domestic spying program.

An increasing number of (gasp!) Republicans are breaking ranks with him over the constitutionality of his Congress-be-damned power grab, most recently Heather Wilson, the Republican chairwoman of the House Intelligence Subcommittee on Technical and Tactical Intelligence.

Wilson says she has "serious concerns" about the program and has called for a full congressional inquiry. The White House response was to dribble out a little more information about the program.

Wilson's remarks follow the news that 11 of the 16 members of the House Judiciary Committee, including three Republicans, also have gone public with reservations about the program following the appearance before the committee of Attorney General Alberto "Obfuscator" Gonzalez, whose efforts to put a positive spin on Bush's actions fell well short.

Noted David Broder in a column in today's Washington Post:

[T]he authority Bush is using is, in the judgment of Republicans as well as Democrats, highly questionable. . . .

As for the administration's contention that Bush has "inherent power" as chief executive to order warrantless wiretaps, [South Carolina Republican Sen. Lindsay] Graham said, "Its application, to me, seems to have no boundaries when it comes to executive decisions in a time of war. It deals the Congress out. It deals the courts out."

With two other Republicans . . .and all the Democrats agreeing with Graham's view, the president has been given a clear signal to get off his high horse and come to Congress for statutory authority and court supervision of the surveillance program.

Yesterday, the White House offered further briefings but not legislation. If Bush won't do so, Congress needs to assert its responsibility by moving that legislation on its own.

Meanwhile, the Post reported today that Justice Department lawyer James A. Baker twice warned the presiding judges of the secret surveillance court that information overheard in the NSA program may have been improperly used to obtain wiretap warrants in the court. Says the Post:

The two judges' discomfort with the NSA spying program was previously known. But this new account reveals the depth of their doubts about its legality and their behind-the-scenes efforts to protect the court from what they considered potentially tainted evidence. The new accounts also show the degree to which Baker, a top intelligence expert at Justice, shared their reservations and aided the judges.

Both judges expressed concern to senior officials that the president's program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions. Yet the judges believed they did not have the authority to rule on the president's power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process.

And yet once again the specter of the Bush administration's disdain for the so-called Rule of Law and its implications for successfully prosecuting real terrorists in the face of courts that take that principle seriously rears its butt ugly head.

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In an obvious effort to push back at critics of the NSA program, President Bush today disclosed details about a 2002 plot to fly a hijacked airliner into the Library Tower in Los Angeles, at 1,018 feet, is the tallest building west of the Mississippi River. The administration had first revealed its existence in October.

The plot was set in motion by Khalid Shaikh Mohammed, the alleged mastermind of the 9/11 attacks, about a month after those happened, Bush said. It involved terrorists from Al Qaeda's Southeast Asia wing, Jemaah Islamiyah. You'd better believe the president would have said so if surveillance had been a factor in foiling the plot, but he merely cited "international cooperation," which certainly is not a bad thing.