The Foreign Intelligence Surveillance Act of 1978 is such a law; it was enacted to end years of routine wiretapping of American citizens who had attracted official attention by opposing the war in Vietnam. The express purpose of the act was to limit what presidents could ask intelligence organizations to do. But for limits on presidential power to have meaning Congress and the courts must have the fortitude to say no when they think no is the answer.
In public life as in kindergarten, the all-important word is no. We are living with the consequences of the inability to say no to the President’s war of choice with Iraq, and we shall soon see how the Congress and the courts will respond to the latest challenge from the White House—the claim by President Bush that he has the right to ignore FISA’s prohibition of government intrusion on the private communications of Americans without a court order, and his repeated statements that he intends to go right on doing it.
Nobody was supposed to know that FISA had been brushed aside. The fact that the National Security Agency (NSA), America’s largest intelligence organization, had been turned loose to intercept the faxes, e-mails, and phone conversations of Americans with blanket permission by the President remained secret until the New York Times reporters James Risen and Eric Lichtblau learned over a year ago that it was happening. An early version of the story was apparently submitted to the Times‘ editors in October 2004, when it might have affected the outcome of the presidential election. But the Times, for reasons it has not clearly explained, withheld the story until mid-December, when the newspaper’s publisher and executive editor—Arthur Sulzberger Jr. and Bill Keller—met with President Bush in the Oval Office to hear his objections before going ahead. Even then certain details were withheld.
What James Risen learned in the course of his reporting can be found in his newly published book State of War: The Secret History of the CIA and the Bush Administration, a wide-ranging investigation of the role of intelligence in the origins and the conduct of the war in Iraq. Risen contributes much new material to our knowledge of recent intelligence history. He reports in detail, for example, on claims that CIA analysts quit fighting over exaggerated reports of Iraqi weapons of mass destruction as word spread in the corridors at Langley that the President had decided to go to war no matter what the evidence said; that the Saudi government seized and then got rid of tell-tale bank records of Abu Zubaydah, the most important al-Qaeda figure to be captured since September 11; and that “a handful of the most important al Qaeda detainees” have been sent for interrogation to a secret prison codenamed “Bright Light.” One CIA specialist in counterterror operations told Risen, “The word is that once you get sent to Bright Light, you never come back.”
Digging out intelligence history is …