"Dedicated to exposing the lies and impeachable offenses of George W. Bush"

White House spying defense rests on shaky legal ground
Yahoo News/USA Today
February 6, 2006

In the seven weeks since The New York Times revealed that President Bush has been ordering wiretaps on communications into and out of the USA without asking for the warrants required by law, the explosive debate has been long on political spin and short on hard fact.

The White House has waged disingenuous political and legal campaigns, suggesting that critics of its "terrorist surveillance" program are soft on al-Qaeda and that only known evil-doers are being monitored.

Some on the left, meanwhile, have declared that Bush's "domestic spying" is flatly illegal and that impeachment proceedings should begin forthwith.

What's needed at this point is a sober, bipartisan investigation into just what has been going on. Senate hearings that begin today, with Attorney General Alberto Gonzales as the leadoff witness, provide that opportunity, if only both sides will use it.

There's already a model on how to proceed: The hearings in the 1970s, chaired by then-senator Frank Church, that looked into whether President Nixon used the National Security Agency (NSA) and other intelligence agencies to snoop illegally on domestic opponents.

Bush's motives are different. He wants to protect Americans in the war on terror, not spy on political rivals. "If al-Qaeda is calling into the United States, we want to know," is how he puts it. Nonetheless, Bush's program and attitude are Nixonian in one basic way: A president has decided that he alone can determine when the NSA spies on Americans. That breaks the careful system of checks and balances the Founding Fathers put in place, and on which American democracy rests.

The Church Committee took into account the potential need for the president to order wiretaps in secret and occasionally in haste to protect the nation. It crafted a law - the Foreign Intelligence Surveillance Act (FISA), passed in 1978 - designed to prevent abuse without compromising national security.

FISA established a special court to approve requests for domestic wiretapping. The court can approve eavesdropping retroactively if need be. It isn't required to make its business public. It has approved thousands of requests and declined just a handful.

Yet, after 9/11, the Bush administration decided that it did not need to seek warrants from the FISA court to eavesdrop on overseas calls to and from Americans.

Its tortured legal arguments rest on the claim that the president has the implied authority in his constitutional role as commander in chief and in a resolution passed by Congress authorizing the invasion of Afghanistan. But that resolution said nothing about electronic surveillance. And if the Justice Department is so convinced it's on solid legal ground, why is it refusing to release documents to back up the evolution of this legal opinion, one that reportedly drew protests from several senior department officials?

The political spin is equally suspect: The administration implies the only choice is between monitoring calls and new attacks. "We will not ... wait to be hit again," Bush said in his State of the Union speech. But no one is saying phone calls by al-Qaeda operatives shouldn't be monitored; the issue is how to do it within the law and without compromising civil liberties.

Among the many questions that need answers at the Senate Judiciary Committee hearings - some of which might need to be addressed in closed session - are these:

• Why can't the administration use the existing FISA system? Is the system outdated in an era of cellphones, websites and e-mail? Or is the administration simply so arrogant that it thinks it can disregard the law?

• How many people are being targeted? How valuable are the wiretaps? Is it true that most of the NSA tips are useless and waste FBI time? What happens to data collected on people who have no connection to terrorism?

If the hearings show that the existing FISA system is sufficient, the Senate committee should insist that the administration comply with it. If the hearings reveal a need to overhaul the system to fight the new threat, then the panel should come up with legislation to do that. It might also consider calling for expedited Supreme Court review of the law's legality, much as was done for campaign-finance reform, to resolve the constitutional debate in a timely way.

The point is that decisions going forward have to be made on facts, not assertions. A concentration of power eventually invites abuse, no matter how pure the motivations. As Frank Church put it three decades ago, the nation "cannot sweep improper activities under the rug - at least not if we are to remain true to our oath to uphold the Constitution and the laws of the land."