As ranking member on the House Intelligence Committee from 2003 to 2006, I was part of the so-called Gang of Eight -- a group made up of the House and Senate leaders plus the chairs and ranking members of the two chambers’ intelligence committees that is required by law to be briefed on the CIA’s “covert” action programs.
Those briefings were conducted roughly quarterly at the White House -- either in the vice president’s office or the Situation Room. Most of the ones I attended concerned a code-named program now known as the Terrorist Surveillance Program. Respectful of the double oath I signed to protect highly classified material, I did not take notes or speak to anyone about the meetings. However, comments by Michael Hayden, former director of the National Security Agency and the CIA, that the Gang of Eight was “fully” briefed on the TSP prompt me to disclose, for the first time, what they were like.
In virtually every meeting, Hayden would present PowerPoint “slides,” walking us through the operational details of the TSP. The program has since been described, in part, as one that intercepted communications to and from the U.S. in an effort to uncover terrorist networks and prevent or disrupt attacks. We were told that the program was the centerpiece of our counter-terrorism efforts, legal and yielding impressive results.
Often present were CIA officials (including then-Director George Tenet) and then-White House counsel Alberto R. Gonzales. Missing was any Justice Department presence -- a tipoff, in retrospect, to the legal limbo under which the program operated.
Fast-forward to the jaw-dropping inspectors general report released this month, which makes clear that the TSP’s legal underpinnings were fatally flawed and its results minimal. Those topics consumed scant time at our briefings. Why?
It is now clear to me that we learned only what the briefers wanted to tell us -- even though they were required by law to keep us “fully and currently informed.” Absent the ability to do any independent research, it did not occur to me then that the program was operated wholly outside of the framework Congress created as the exclusive means to conduct such surveillance: the Foreign Intelligence Surveillance Act.
Nor did I know that the Justice Department was cut out of the process, and that one lawyer, John Yoo, had drafted the internal memo justifying the TSP under the president’s Article 2 authorities. A new head of the Office of Legal Counsel repudiated that memo, citing the “shoddiness” of the legal reasoning. Among other things, it even failed to cite the key Supreme Court precedent -- the steel-seizure case -- which held in 1952 that when Congress has acted on an issue (as it did by passing FISA in 1978), the president’s power is at its “lowest ebb.”
And I did not know -- until I read it in the press -- of the 2004 drama at then-Atty. Gen. John Ashcroft’s hospital bedside, when Bush officials sought his sign-off on an extension of the program. I recall being told that there was a “glitch” in the approval process. A glitch? More like a near-hijacking of our democracy.
Much has happened since. The Yoo memo was officially discredited and replaced. After considerable resistance, the Bush administration finally briefed the full intelligence committees, and FISA was amended to assure its application to the TSP.
In a July 16 Op-Ed article in the Wall Street Journal, Yoo wrote that “it is absurd to think that a law like FISA should inhibit live military operations against potential attacks on the United States.” I see it rather differently. While our country had experienced the worst terrorist attack in our history, the Orwellian solution conjured up by a small group in the Bush administration was to shred our laws and Constitution in order to save us -- a false and unnecessary choice.
Security and liberty are not a zero-sum game. Our Constitution protects both. Members of each branch of government take an oath to uphold the Constitution. Bipartisan oversight by Congress to assure that the laws we pass are faithfully executed is an indispensable part of that equation.
The House and Senate intelligence authorization bills would require increased notification, including, in the House bill, information on lawfulness, cost, benefit and risk. The White House has issued a veto threat, citing constitutional concerns. Surely both sides -- and policy -- would profit more from a robust partnership.