Whitehouse on FISA

Senator Sheldon Whitehouse (D-RI) has, so far, been the most pleasant surprise to DB since the November 2006 elections.

First, he had the most impressive moment of the day during the last hearing with Attorney General Alberto Gonzales, when he pulled out some staggering charts to highlight the connections between the White House and the Department of Justice. (Dahlia Lithwick has the chart here.)

And again yesterday, at a Senate Intelligence Committee hearing, Sen. Whitehouse laid out the case against expanding Bush's intelligence gathering authority with total clarity. Here are his comments in total:

We'll talk more about this, obviously, in the closed session, but I wanted to make a couple of points. And before I do, Director, let me say that I'm going to be speaking rather generally. As between you and I, I believe you to be an honorable and trustworthy man. I think you are here with a view to be professional. That is your motivation. You are not an ideologue or a partisan and your desire is to repair the intelligence function of the United States and I applaud you for that.

But that said, you are still asking for substantial changes in your authority. As an aside, I think the new technologies that have emerged do suggest some adjustment to FISA. It may be over- or under-inclusive in some areas, but as we look through the lens of the past, in terms of evaluating how much we can trust you with, institutionally. You know, these are tough times. As you said, we had FISA... the reason we have FISA in the first place is because of past abuses.

We've just found out about the litany of national security letter abuses within the Department of Justice.

The Attorney General has thoroughly and utterly lost my confidence. And at this stage, any element of the FISA legislation that depends on the Attorney General will need some other backstop in order to have my confidence.

We are coming out of this Article II regime the TSP program of warrantless wiretapping, and to this day, we have never been provided the presidential authorizations that cleared that program to go, or the Attorney General-Department of Justice opinions that declared it to be lawful.

Now, if this program is truly concluded, the TSP program, and if this is the new day, where everything is to be under FISA, I can't imagine for the life of me why those documents, that pertain to a past and closed program, should not be made available to the Committee and to us.

And so to me, it is very concerning, as we take these next steps, for you to be saying impliedly "Trust us. We need the authority. We'll use it well," when we're coming off the record of the national security letters. We're coming off terrible damage done to the Department of Justice by this Attorney General. We're coming off a continuing stonewall from the White House on documents that I cannot, for the life of me, imagine merit confidentiality at this stage.

And in the context of all of that... You've got some uphill sledding with me.

And I want to work with you and I want to do this, but it would be a big step in the right direction in terms of building the trust

Mr. Potenza, I heard you just talk about how important it was, to the extent we've been disclosed... these opinions... that there was that transparency... We've been talking a lot about transparency and all that kind of stuff.

Where's the transparency as to the presidential authorizations for this closed program. Where's the transparency as to the Attorney General's opinion as to this closed program? That's a pretty big "We're not going to tell you" in this new atmosphere of trust we're trying to build.