Posted by Mark Silva at 3:25 pm CST
Add Richard Clarke, former counter-terrorism director in the White House, to a growing list of people accusing the Bush administration of breaking the law with its surveillance without court orders of people inside the United States communicating with suspected terrorists on the outside.
And Clarke, who left the White House in 2003 voicing complaints that the administration had not taken the threat of terrorism seriously before the attacks of Sept. 11, 2001, maintains the administration still is mishandling the war on terror. With its focus on a “tactical” battle with terrorists, he said today, the White House is losing a “strategic” battle for the hearts and minds of people in Islamic nations and Europe. Clarke says he didn’t know about the National Security Agency’s surveillance of telephone calls and emails of people in the U.S. communicating with suspected terrorists, which the president secretly authorized following 9/11 and has re-authorized many times since then. That surveillance program only recently was made public.
“I think what they are doing is illegal,” Clarke said today at a forum of the Center for National Policy, a nonpartisan research center in Washington.
The White House maintains that Bush has acted legally, pointing to an Authorization for the Use of Military Force that Congress adopted in the days following 9/11 allowing the president to use “necessary and appropriate force” in a fight against the people or groups responsible for the terrorist attacks on the U.S., as well as the president’s standing constitutional authority to wage war.
White House spokesman Scott McClellan said today that Attorney General Alberto Gonzales will testify as such when the Senate Judiciary Committee opens promised hearings on the NSA surveillance – expected in February.
But Clarke and others maintain that the Foreign Surveillance Intelligence Act (FISA), which was enacted in 1978 to crack down on past abuses of domestic spying, requires the administration to seek warrants for any home-front surveillance that it is conducting in the war on terror. It could be, Clarke said, that the volume of calls and email that the NSA was tapping made FISA’s requirements too “cumbersome.” But if so, he said, the administration should have asked Congress to revise the law.
Tim Roemer, president of the Center for National Policy, a member of the 911 Commission that investigated the terrorist attacks and former Democratic congressman from Indiana, suggested that if the White House had gone to Congress – particularly in the emotional days following 911 – it could have gotten the authority it was seeking.
“They circumvented the law,” Roemer said, “and they may well have violated the law.”
There’s already a chorus of critics accusing Bush of breaking the law with the NSA surveillance. Former Vice President Al Gore, Bush’s Democratic opponent in the 2000 election, said as much in a speech this week in Washington. Several lawyers, including former FBI Director William Sessions and former Assistant Attorney General Walter Dellinger, have said as much in a letter to congressional leaders.
If the law was hampering surveillance of suspected terrorists, Clarke said, “the choice is not to say the FISA law does not work for that, so we’re going to go around it. The only choice they had was to go to Congress.”
Clarke had asked to leave the counter-terrorism office of the White House’s National Security Council in June 2001, he says, and in October 2001 then-National Security Advisor Condoleezza Rice announced that Clarke would become the president’s special advisor for cyber security. By November, he was out of counter-terrorism.
Republicans have accused Clarke of soft-pedaling criticism for his previous boss, former President Clinton, who had missed opportunities to apprehend or kill al-Qaeda mastermind Osama bin Laden, and for unduly criticizing Bush. But Clarke also has deep credentials, having served as an assistant secretary of state for the first President Bush and deputy assistant secretary of state for intelligence for President Reagan.
“This administration has regrettably fought the battle against the Jihadists in a highly unproductive way,” Clarke said at today’s forum. “This administration has carried it out in such a way that we have lost support from the very governments needed.”
With the invasion of Iraq and with American conduct in Iraq – including the abuses of prisoners at Abu Graib – he said, “What we have done is to systematically alienate both the Islamic governments and the European governments.”
“When we look at all the al-Qaeda people we have rounded up and killed, tactically, we have been successful,” he said. But “because of our failure to concentrate on the battle of ideas… we are laying the seeds for a new al-Qaeda to grow in Islamic countries and in Europe… a new movement whose attacks will come five years from now… Where we have diminished support for the U.S., we have increased support for the Jihadists.”
And with “our ham-handed approach to counter-terrorism at home,” violating Americans’ civil rights with spying, the administration has lost support at home, he said.
“We have to recognize that the probability of another major terrorist attack in the United States is pretty high,” said the man who served as national coordinator for security and counter-terrorism until the fall of 2001. “We’re laying the seeds for terrorists all around the world to come here and attack us.”
