To many international observers, the controversy raging in Washington, D.C.’s governing classes over what the Bush administration calls “terrorist surveillance” and critics label “domestic spying” is very difficult to understand. For those unfamiliar with this story, last December, the New York Times broke the electrifying news that the National Security Agency (NSA) had been conducting super secret surveillance of Americans at home in apparent violation of the law. NSA is America’s electronic spying agency and is forbidden by law to conduct surveillance at home of U.S. citizens.
To many outside the United States, what was the issue? Governments have the right to protect their citizens. In much of the world, such intrusive acts of eavesdropping and wiretapping are to be expected even if unwelcome in the name of public safety and security especially if a nation is engaged in a global war on terror.
But the fact is that domestic surveillance inside the United States has explosive potential. The conflict is constitutional in character, impinges on protection provided citizens against unlawful search and seizure and pits the power of the presidency against that of Congress. The only good news is that this conflict, for the moment, is less one of partisan politics with Democrats taking on Republicans and vice versa than a clash of authority between two major branches of government over the Constitution and what constitutes unjust search. Understanding how and why a dangerous collision could occur provides a critical insight in better understanding America and its system of government.
Shortly after the attacks of September 11th, 2001, President Bush authorized NSA to begin a highly secret, covert program of surveilling communications either from abroad to the United States or from within the states to phone numbers and e-mails of individuals suspected of being members, associates or people otherwise involved with al Qaeda. Eight members of Congress were briefed---the leaders in both the Senate and the House and the ranking members of the two intelligence committees. Until the New York Times’ story, the program’s existence was unknown.
Immediately, critics saw this program as suspending protection against search and seizure guaranteed by the Fourth Amendment to the Constitution as well as bypassing or violating the Foreign Intelligence Surveillance Act of 1978 known as FISA. FISA specified that no domestic surveillance or spying on Americans could be conducted without a court approved warrant. FISA grew out of the excess of an earlier era.
In the 1960’s, President Lyndon Johnson relied on extra-legal wiretaps as did his director of the FBI, the infamous J. Edgar Hoover, all or most in direct violation of the law. In the 1970’s, the Nixon administration carried on the practice by wiretapping several of his own key staff members and conducted the break-in of the Democratic Party Headquarters in the Watergate apartment building in central Washington, D.C. that ultimately led to his resignation.
After disclosure of these and other covert intelligence activities, the Church Committee, named for the late Democratic Senator Frank Church of Idaho, investigated the CIA and produced a long list of reforms. From those investigations, FISA was passed and signed into law by President Jimmy Carter who wrote as a “signing statement” attached to this law that FISA was the ultimate authority on how domestic surveillance would be conducted meaning only with court approved search warrants.
FISA created a special and secret FISA court with eleven Federal judges hand picked by the Chief Justice of the Supreme Court. All domestic wiretaps and electronic surveillance of American citizens categorically required warrants issued by this court. Warrants could be obtained retroactively within 24 hours of beginning the surveillance.
The Bush administration rested its decision to authorize this surveillance for four reasons. First, it argued that the Constitution gave the president virtually unlimited power in his capacity of “commander in chief” in time of war, superseding the FISA and the Fourth Amendment.
Second, it argued that the Congressional Resolution of September 2001 to “use all necessary and appropriate force” in responding to al Qaeda attacks applied to all forms of electronic surveillance.
Third, it cited the Supreme Court case “Hamdi v Rumsfeld” in which an American citizen captured in Afghanistan fighting with the Taliban could be detained as an “enemy combatant” and thus not be afforded his Constitutional safeguards as evidence that the President had extended powers under the resolution authorizing force to authorize this surveillance.
Fourth, the administration argued that technology in the form of cell phones, the Internet and fiber optic transmission lines rendered FISA obsolete. As a result, the surveillance ordered was not covered by FISA, at least in the White House view. And, what it did not say publicly was that about a third of all international calls are routed through the United States, raising the question of whether tapping into these sources was also outside FISA.
A further justification for its policies on domestic surveillance was derived from the premise that in certain circumstances such as when a detainee or suspect had information that could prevent an attack that could kill tens or hundreds of thousands, extreme methods were necessary. Those methods pertained to surveillance and eavesdropping. Yet, in 1978 when FISA was enacted, the threat of the Soviet Union included the possibility of thermonuclear war in which the United States would have been obliterated. Extreme methods were not deemed necessary then when the absolute risk was catastrophic.
Finally, the president and his leading intelligence and law enforcement officials claimed that proper oversight was being conducted by lawyers in the Justice Department, the White House and NSA and that the president re-approved the surveillance program every 45 days. However, no outside oversight by another branch of government was sought and only the head FISA judge was aware of the program.
Meanwhile, a Congress that had largely downplayed oversight of the administration showed signs of finally waking up. The controversies over “torture” and the ill-treatment of enemy combatants captured in the Global War on Terror in Guantanamo Bay, Cuba and Abu Ghraib and other prisons and over the continuing violence and chaos in Iraq as well as the disastrous response to Hurricane Katrina that devastated three southern states on the Gulf of Mexico, brought Congress into direct confrontation with the White House. Senator John McCain, himself a Vietnam war prisoner of war who suffered torture, and a few others literally forced the White House to sign into law a stature barring “cruel, inhuman and degrading” treatment of prisoners grudgingly. And long absent Congressional oversight from monitoring post-war reconstruction in Iraq to the mishandling of hurricane recovery appeared to be stirring.
But it was the domestic surveillance issue that engaged both Republican and Democratic members of Congress. The Senate Judiciary Committee, chaired by Arlen Specter, summoned Attorney General Alberto Gonzalez for a full day of grilling in early February. Four Republican Senators of the Committee joined all eight Democrats in registering great concern and worry that the authorization to surveil domestically bypassed and possibly broke the law and the Fourth Amendment.
Their arguments were based in large part on fundamental disagreements with presidential interpretation of FISA and the resolution authorizing force. FISA had been amended five times after September 11th including extending the 24-hour deferral to 72 before obtaining a warrant. The USA Patriot Act had been passed by overwhelming majorities and provided the president with further latitude in surveilling suspected terrorists. If the White House were not satisfied with those actions, why was Congress not asked to make further changes?
Regarding the resolution authorizing the use of force, members of Congress voting at the time did not believe that surveillance was covered. The then Majority Leader Senator Tom Daschle in fact deleted reference in the White House’s proposed resolution to any domestic authority to conduct surveillance. Hence, in the view of a number of members of Congress, the presidency exceeded its authority based on this resolution.
With Congress still debating what to do, it is difficult to know what lies ahead. The White House has exerted significant pressure on the Senate Judiciary Committee not to take further action on terrorist surveillance. At the time this article goes to press, after being more extensively briefed on the program by the administration, Congress seems to have had its appetite for overhauling the NSA surveillance program curtailed.
The most sensible solution is for Congress to pass a law that gives the oversight responsibility to the FISA Court for day-to-day matters regarding surveillance and to the two Congressional Intelligence Committees for broader review. So far the White House has resisted this compromise preferring to remain committed to the broader view of presidential power. If the impasse remains, it is possible that the President will declare FISA unconstitutional and an undue infringement on presidential authority. Should that occur, the case would presumably go to the Supreme Court.
Any number of “fault lines” persists within the fabric of American society. As with all states, vulnerability to terrorist attack can never be reduced to zero. There are growing economic concerns over the rising debt and deficits. Iraq does not appear to be growing more stable or safer. Iran is challenging the international order regarding the Non-Proliferation Treaty and pursuing nuclear weapons. Any of these as well as other fault lines could fail or shatter.
Now is not the time to provoke a constitutional crisis. But if the White House views this strictly as a test of wills and Congress sees this is a threat to its authority and responsibility as it should, then this fault line could become the most exposed of all. Those from abroad with interests in better understanding the politics of this nation should recognize the potential that domestic surveillance has for engulfing the United States in further political gridlock while remaining sufficiently objective to recognize that this issue could simply melt away because it is too difficult to take head on.
JIME Center.All rights reserved.