When President Bush said yesterday that “[l]eaders in Congress have been briefed more than a dozen times” on the NSA no-warrant spying operation, it sounded — as one Media Nation correspondent pointed out — a bit like his claims that Congress saw the same pre-war intelligence as the administration.
It turns out, though, that it’s true — sort of. How much Congress knew may determine whether Bush can extricate himself from this disaster.
Consider, for instance, this page-one piece in today’s Washington Post. Barton Gellman and Dafna Linzer report:
A high-ranking intelligence official with firsthand knowledge said in an interview yesterday that Vice President Cheney, then-Director of Central Intelligence George J. Tenet and Michael V. Hayden, then a lieutenant general and director of the National Security Agency, briefed four key members of Congress about the NSA’s new domestic surveillance on Oct. 25, 2001, and Nov. 14, 2001, shortly after Bush signed a highly classified directive that eliminated some restrictions on eavesdropping against U.S. citizens and permanent residents.
In describing the briefings, administration officials made clear that Cheney was announcing a decision, not asking permission from Congress. How much the legislators learned is in dispute.
Former senator Bob Graham (D-Fla.), who chaired the Senate intelligence committee and is the only participant thus far to describe the meetings extensively and on the record, said in interviews Friday night and yesterday that he remembers “no discussion about expanding [NSA eavesdropping] to include conversations of U.S. citizens or conversations that originated or ended in the United States” — and no mention of the president’s intent to bypass the Foreign Intelligence Surveillance Court.
Hmmm. That sounds like disclosure of a sort, but hardly full disclosure. But an anonymous White House source tells the Post that Graham is “misremembering the briefings.” And that contention is given some credence by House Democratic leader Nancy Pelosi, who was also briefed, and who says that she “expressed my strong concerns” about what she was hearing.
David Sanger provides more on Pelosi in today’s New York Times:
In a statement, Representative Nancy Pelosi of California, the Democratic leader, said she was advised of the president’s decision shortly after he made it and had “been provided with updates on several occasions.”
“The Bush administration considered these briefings to be notification, not a request for approval,” Ms. Pelosi said. “As is my practice whenever I am notified about such intelligence activities, I expressed my strong concerns during these briefings.”
This matters — a lot. If Bush was keeping Congress informed about NSA spying, then it will be much easier for him to make the case that he was using the powers granted to him by Congress in its almost-declaration of war following the terrorist attacks of 9/11.
That doesn’t make this any less an affront to civil liberties. And it still doesn’t explain why the White House didn’t simply take the fully legal route of having the FBI request warrants from a secret court under the terms of the Foreign Intelligence Surveillance Act. But it does make it a lot less likely that Bush will find himself in any substantial legal or constitutional trouble.
Even if the Democrats controlled one or both branches of Congress — well, what would Speaker Pelosi say?