Because he's resigning, Attorney General Alberto Gonzales won't have much chance to exercise his powers under the Protect America Act. The new law charges the attorney general with determining which international communications involving people in the U.S. will be subject to warrantless surveillance.
Members of Congress were so distrustful of Gonzales that they insisted he share this authority with the director of national intelligence, Mike McConnell. But while McConnell, the apolitical expert, may enjoy a better reputation for honesty and independence than Gonzales, the longtime Bush crony, the two men seem to have similar instincts about privacy and executive power.
In a recent interview with the El Paso Times, McConnell regrets the debate about the National Security Agency's warrantless surveillance program: "The fact (that) we're doing it this way means that some Americans are going to die," he says. "Because it's so public."
McConnell is trying to frighten Americans into supporting President Bush's anti-terrorism policies. Worse, he is charging critics of those policies with complicity in murder.
As Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy, observes, "He's basically saying that democracy is going to kill Americans." And not just democracy but constitutional government of any kind, because by McConnell's logic, anything that interferes with the president's unilateral decisions regarding national security "means that some Americans are going to die."
McConnell wants to have it both ways: Terrorists are so sophisticated that the government needs broad surveillance powers to thwart them, yet they are too stupid to realize someone might be listening to their phone calls or reading their e-mails. Evidently the possibility occurred to them only after they read about it in the newspaper.
Because the discussion of NSA surveillance has not revealed information specific enough to help terrorists escape detection, it seems clear McConnell's real concern is that public debate might impede Bush's policies. This is a new twist on the old argument for secrecy: Information must be kept from the public not just to keep it from our enemies but to prevent the public from objecting to measures the president considers necessary to protect national security.
Providing further evidence that he sees classification as a way to avoid the inconvenience of defending the administration's policies, McConnell uses the interview to confirm something the administration has long insisted it could not discuss safely: that telecommunications companies helped the NSA conduct its warrantless surveillance. Although that much may have seemed obvious, the Justice Department has tried to stop lawsuits against the cooperating carriers by arguing that even acknowledging their help would endanger national security.
But now that Bush wants Congress to give the companies retroactive immunity from liability for aiding and abetting the illegal snooping, McConnell is suddenly more forthcoming. "Under the president's program," he says, "the private sector had assisted us." Now those assistants need assistance, he explains, because "if you play out the suits at the value they're claimed, it would bankrupt these companies."
Judging from this example, Bush administration officials feel duty-bound to withhold information when it might be useful to critics of the president's anti-terrorism policies, because those policies are necessary to protect national security. But they believe the very same information can -- indeed, should -- be released at a more opportune time, when it will help the president pursue his policies.
In the interview, McConnell makes a point of describing himself as "an apolitical figure" who has voted for candidates from both major parties and is neither a Democrat nor a Republican. He means to reassure us that we can trust him, a nonpartisan professional, to make decisions about whose communications to monitor.
But McConnell is a professional spy. He naturally wants to do his spying as free from restrictions as possible. We would not trust prosecutors to say what due process is, and we should not trust spies to define the limits of our privacy.