NSA Wiretapping Defended by Bush, Hayden

FISA Not Always Appropriate or Effective

Defenders of NSA's international terrorist surveillance program, inaccurately depicted by the Press as "Domestic Spying," spoke out today to kick off a week of PR, during which President Bush hopes to bring his case to the American People. This move is in anticipation of upcoming congressional hearings on the subject.

Speaking from Kansas State University today for an unusually long session, with an open Q&A in the second half, the President made it clear that he intends to stick to his guns on the surveillance tactics he ordered. Some snippets:

"These are not phone calls within the United States, it's a phone call of an Al Qaeda, known Al Qaeda suspect making a phone call into the United States."

"If [terrorists] are making a call to the United States, we need to know why, to protect you," Bush said, adding that despite criticism of the program saying otherwise, he did consult with many lawyers and some members of Congress before authorizing the eavesdropping program.

"It's amazing when people say to me, 'Well, he's just breaking the law.' If I wanted to break the law, why was I briefing Congress? Federal courts have consistently ruled that a president has authority under the Constitution to conduct foreign intelligence surveillance against our enemies. Predecessors of mine have used that same constitutional authority."

Meanwhile, Air Force General Michael Hayden, the former Director of NSA and current Deputy Director of National Intelligence, made an appearance at the National Press Club today. Known for his brilliant retooling of NSA in the aftermath of 9-11-05, Hayden had plenty to say on the subject as well.

"Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the al-Qaeda operatives in the United States."

When asked how National Security had been harmed by the leak, given that "the bad guys already assume they are being monitored:"

"You know, we've had this question asked several times. Public discussion of how we determine al Qaeda intentions, I just -- I can't see how that can do anything but harm the security of the nation. And I know people say, "Oh, they know they're being monitored." Well, you know, they don't always act like they know they're being monitored. But if you want to shove it in their face constantly, it's bound to have an impact. [C]onstant revelations and speculation and connecting the dots in ways that I find unimaginable, and laying that out there for our enemy to see cannot help but diminish our ability to detect and prevent attacks."

When asked why FISA, with its 72-hour grace period, was not good enough for all cases of this kind of monitoring:

"Under the FISA statute, NSA cannot put someone on coverage and go ahead and play for 72 hours while it gets a note saying it was okay. All right? The attorney general is the one who approves emergency FISA coverage, and the attorney general's standard for approving FISA coverage is a body of evidence equal to that which he would present to the court. So it's not like you can throw it on for 72 hours."

"In the instances where this program applies, FISA does not give us the operational effect that the authorities that the president has given us give us. Look. I can't -- and I understand it's going to be an incomplete answer, and I can't give you all the fine print as to why, but let me just kind of reverse the answer just a bit. If FISA worked just as well, why wouldn't I use FISA? To save typing? No. There is an operational impact here, and I have two paths in front of me, both of them lawful, one FISA, one the presidential -- the president's authorization. And we go down this path because our operational judgment is it is much more effective. So we do it for that reason."

((Did I happen to mention that General Hayden possesses a rare intellect, and can put an unwary room full of reporters to shame? Well, see for yourself - Read the full transcript of his press conference. Lots of great information on the right side of this debate to be found here.))

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Speaking of FISA, here is a point of interest: In April 2004, members of the September 11th Commission briefed the press on some preliminary findings concerning problems with FISA.

"Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act, or FISA, the application process nonetheless continues to be long and slow," the commission said. "Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance. The Department of Justice and FBI are attempting to address bottlenecks in the process."

Hmmmm. Bet you don't see THAT splashed all over the press, now do you?