…then it’s a pretty good bet it’s legal. I’m talking, of course, about the very effective way the Bush Administration quietly defined the parameters of the political elite’s view of the NSA “scandal.”
There’s obviously a political dimension to the Administration’s NSA public-relations “offensive” this week. But more importantly, the Administration needed to nip in the bud any serious move at a policy level towards reigning in the NSA. With enough political momentum, these things can get out of hand. And from all the confusion over the past few weeks, it’s clear that the chattering class hasn’t had the right facts — coming from a reliable, knowledgeable, and if-not-unbiased-at-least-truthful source — about which the conventional wisdom of Washington could coalesce.
And that’s why, of all the Administration’s public-relations moves this week on the NSA front, by far the most important is General Michael V. Hayden’s speech two days ago to the National Press Club. What’s that? Didn’t hear much about it in the MSM, did you? It’s critically important because of the tone, if nothing else. Unlike AG Gonzalez, or any of the talking heads tossed out to the network gabfests, Hayden’s speaking as an insider, to insiders, patiently explaining things, expecting a certain level of comprehension from his audience about the way things work in Washington, and speaking to them at that level.
And here’s what he says:
“…So now, we come to one additional piece of NSA authorities. These are the activities
whose existence the president confirmed several weeks ago. … The lawfulness of the actual authorization was reviewed by lawyers at the Department of Justice and the White House and was approved by the attorney general.
Now, you’re looking at me up here, and I’m in a military uniform, and frankly, there’s a
certain sense of sufficiency here — authorized by the president, duly ordered, its
lawfulness attested to by the attorney general and its content briefed to the congressional leadership.
But we all have personal responsibility, and in the end, NSA would have to implement this,and every operational decision the agency makes is made with the full involvement of its legal office. NSA professional career lawyers — and the agency has a bunch of them — have a well-deserved reputation. They’re good, they know the law, and they don’t let the agency take many close pitches.
And so even though I knew the program had been reviewed by the White House and by
DOJ, by the Department of Justice, I asked the three most senior and experienced
lawyers in NSA … They reported back to me. They supported the lawfulness of this program. Supported, not acquiesced.”
That seals the deal, folks. There’s no honor among thieves, but there is definitely a kind of honor within the corridors of power. I saw it in action in Sacramento — the loyalty of people within the Capitol is to the institution itself. The unwritten but very well-known rules, surprisingly, are mostly about trust. Break them, and you’ll be eaten alive. Unless Hayden’s a complete idiot, he would not say the things he says in this speech without them being pretty much true — true to the point that any Press Club audience member knows that what Hayden said has just become the insiders’ conventional wisdom. A reporter who moves beyond that CW does so at his or her professional peril. Listen to the personal level of Hayden’s assurances to his audience:
“This was very important to me. A veteran NSA lawyer, one of the three I asked, told me that a correspondent had suggested to him recently that all of the lawyers connected with this program have been very careful from the outset because they knew there would be a day of reckoning. The NSA lawyer replied to him that that had not been the case. NSA had been so careful, he said — and I’m using his words now here — NSA had been so careful because in this very focused, limited program, NSA had to ensure that it dealt with privacy interests in an appropriate manner.
In other words, our lawyers weren’t careful out of fear; they were careful out of a heartfelt, principled view that NSA operations had to e consistent with bedrock legal protections.”Â
Sorry, folks, but that’s all she wrote. The top press folks now know, after Hayden’s speech, that — although the Bush team’s legal defense, in the abstract, divorced from the facts at hand, may not be very good — as a practical matter they have a lot of facts on their side, and plenty of legal arguments and political support to back them up. And the key point of Hayden’s speech is that this includes the support and analysis of career staff attorneys at NSA. These lawyers are not Administration cronies, they’re part of the bureaucracy, the third point of the fabled Iron Triangle of Washington politics and policymaking. Their loyalty is to the institution, not the Administration. And they, more than anyone else in the entire government, are in a position to know all the facts to which the law must be applied. Hayden’s saying, with his personal honor on the line, that they and their analysis can be trusted, as far as the media trusts anyone in Washington. And these attorneys said, basically, it’s okay. That’s it, this issue’s over.
Oh, the MSM will go on and on about the legal aspects of this issue for months, and cover the inevitable Supreme Court case down the line. But they’ll do it with winks and nods, knowing that it’s all just politics now, and serious policy thinkers have moved on. And the Democrats can try to ride this horse to political success, and they’ll see where it gets them. I don’t think it’ll get them very far. But that’s litigation, and party politics, and it’s all far in the future. At the national policy level, right here, right now, trust me, this issue’s dead. And Hayden killed it.
Hat Tip: RealClearPolitics.
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