After recent allegations about the extent of the NSA’s spy program came to light, the Senate looked ready to hold an inquiry. The plan was to haul the telecom companies before Congress and get them to answer some hard questions about what they did with consumer data. Under pressure from the executive branch, however,that plan has now been put on hold.
Vice President Cheney did not want the hearings to go forward (not before the November elections, at least), and he made it clear to Senator Arlen Specter (R-PA), head of the Judiciary Committee, that communications company bosses would be prevented from speaking about most operational aspects of the program for reasons of national security. Senator Orrin Hatch (R-UT) served as the liaison between Specter and Cheney, and worked out a deal under which Cheney agreed to consider a new bill that would put the NSA program to judicial review in exchange for the hearings being scrapped. Specter reluctantly agreed.
“Sen. Hatch said that if I would defer action on the telephone companies, which look to me vacuous, then he would get the administration to accept my bill,” Specter said. “Now I don’t regard that as a guarantee or a warranty, but that’s what he said.”
Specter found a surprising ally for his decision to halt the hearings—Senator Diane Feinstein (D-CA), who expressed sympathy with Cheney’s argument that open discussion of the issue could jeopardize national security. None of this pleased Patrick Leahy (D-VT), who has little love for Cheney.
“Why don’t we just recess for the rest of the year…and simply say we’ll have no more hearings, and Vice President Cheney will just tell the nation what laws we’ll have—he’ll let us know which laws will be followed and which laws will not be followed,” deadpanned Patrick Leahy, the committee’s ranking Democrat. “Heck, it’s a nice time in Vermont this time of year. That’d make my life a lot easier.”
The Senate has not abandoned oversight of the program altogether; Attorney General Alberto Gonzales will answer more questions about the NSA program next week, though he has not been especially forthcoming in the past. A new bill is also being introduced that would subject to the NSA program to review by the special Foreign Intelligence Surveillance Act (FISA) court, The court, which meets in a windowless, secured room at the top of the Justice Department building, has a strong track record of supporting requests by the law enforcement and intelligence communities. Between 1995 and 2004, it received 10,617 wiretap requests and only denied four of them. The federal judges who make up the court are not just administration lackeys, though; one of them resigned in protest last December over the NSA program.
While review of the program by the FISA court is better than no oversight at all, this is not exactly the triumph of transparency. The court case will be closed to the public and decided in secret, and it’s not even clear that any groups will be allowed to make objections or present arguments that counter the government’s portrayal of the program.
This comes as excellent news to the telcos, who probably have little desire to testify about the matter in public, and it essentially gives them a free pass on the issue. Even if what they did was illegal, they can’t be prosecuted now that the government is claiming “executive privilege” to keep them from testifying to Congress and is asserting a “state secrets” privilege that will keep such cases out of court as well. Unless something dramatic happens, the telcos will suffer few consequences from their decision to cooperate with the government, and consumers may never find out exactly what happened (and is happening) to all of their information.