How to Stay Out of Power

By Joe Klein

House minority leader Nancy Pelosi, the California Democrat, engaged in a small but cheesy bit of deception last week. She released a letter, which quickly found its way to the front page of the New York Times, that she had written on Oct. 11, 2001, to then National Security Agency director General Michael V. Hayden. In it she expressed concern that Hayden, who had briefed the House Intelligence Committee about the steps he was taking to track down al-Qaeda terrorists after the 9/11 attacks, was not acting with "specific presidential authorization." Hayden wrote her back that he was acting under the powers granted to his agency in a 1981 Executive Order. In fact, a 2002 investigation by the Joint Intelligence Committees concluded that the NSA was not doing as much as it could have been doing under the law--and that the entire U.S. intelligence community operated in a hypercautious defensive crouch. "Hayden was taking reasonable steps," a former committee member told me. "Our biggest concern was what more he could be doing."

The Bush Administration had similar concerns. In the days after 9/11, it asked Hayden to push the edge of existing technology and come up with the best possible program to track the terrorists. The result was the now infamous NSA data-mining operation, which began months later, in early 2002. Vast amounts of phone and computer communications by al-Qaeda suspects overseas, including some messages to people in the U.S., could now be scooped up and quickly analyzed.

The release of Pelosi's letter last week and the subsequent Times story ("Agency First Acted on Its Own to Broaden Spying, Files Show") left the misleading impression that a) Hayden had launched the controversial data-mining operation on his own, and b) Pelosi had protested it. But clearly the program didn't exist when Pelosi wrote the letter. When I asked the Congresswoman about this, she said, "Some in the government have accused me of confusing apples and oranges. My response is, it's all fruit."

A dodgy response at best, but one invested with a larger truth. For too many liberals, all secret intelligence activities are "fruit," and bitter fruit at that. The government is presumed guilty of illegal electronic eavesdropping until proven innocent. This sort of civil-liberties fetishism is a hangover from the Vietnam era, when the Nixon Administration wildly exceeded all bounds of legality--spying on antiwar protesters and civil rights leaders.

Henry Kissinger even wiretapped his own aides. But the "all fruit" assumption doesn't take into account the strict constraints placed on the intelligence community after the Nixon debacle, or the lethally elusive nature of the current terrorist threat. The liberal reaction is also an understandable consequence of the Bush Administration's tendency to play fast and loose on issues of war and peace--rushing to war after overhyping the intelligence on Saddam Hussein's nuclear-weapons program, appearing to tolerate torture, keeping secret prisons in foreign countries and denying prisoners basic rights. At the very least, the Administration should have acted, with alacrity, to update the federal intelligence laws to include the powerful new technologies developed by the NSA.

But these concerns pale before the importance of the program. It would have been a scandal if the NSA had not been using these tools to track down the bad guys. There is evidence that the information harvested helped foil several plots and disrupt al-Qaeda operations.

There is also evidence, according to U.S. intelligence officials, that since the New York Times broke the story, the terrorists have modified their behavior, hampering our efforts to keep track of them--but also, on the plus side, hampering their ability to communicate with one another.

Pelosi made clear to me that she considered Hayden, now Deputy Director of National Intelligence, an honorable man who would not overstep his bounds. "I trust him," she said. "I haven't accused him of anything. I was, and remain, concerned that he has the proper authority to do what he is doing." A legitimate concern, but the Democrats are on thin ice here. Some of the wilder donkeys talked about a possible Bush impeachment after the NSA program was revealed.

The latest version of the absolutely necessary Patriot Act, which updates the laws regulating the war on terrorism and contains civil-liberties improvements over the first edition, was nearly killed by a stampede of Senate Democrats. Most polls indicate that a strong majority of Americans favor the act, and I suspect that a strong majority would favor the NSA program as well, if its details were declassified and made known.

In fact, liberal Democrats are about as far from the American mainstream on these issues as Republicans were when they invaded the privacy of Terri Schiavo's family in the right-to-die case last year.

But there is a difference. National security is a far more important issue, and until the Democrats make clear that they will err on the side of aggressiveness in the war against al-Qaeda, they will probably not regain the majority in Congress or the country.