August 22, 2007
Known Knowns And Unknown Unknowns Of The New Wiretap Program
Ever since December 2005, when the White House admitted it conducted surveillance on Americans without obtaining a warrant, lawmakers have been wondering about the scope and extent to which the federal government was spying on its own citizens. When one of the judges on the Foreign Intelligence Surveillance Court, James Robertson, quickly resigned in protest, many Americans became acquainted with the top-secret FISA court for the very first time.
It's nearly two years later, and details are still slow in coming. Some things we think we know: The Bush administration admits the National Security Agency bypassed FISA's provisions protecting Americans from wanton Fourth Amendment violations, but as an afterthought. The target was overseas electronic communications -- of any kind, even without reasonable certainty that the target had ties to terrorism. If an American just happened to be on the other end of the line, so be it.
Some civil libertarians, of course, view the NSA program as President Bush giving himself license to listen in on every Tom, Dick and Mary squawking into a cell phone. That's possible, but it's also doubtful. Counterterrorism is the point (and no, saying so does not justify what may very well be unconstitutional domestic surveillance).
And that presents ever more obstacles for administration critics clamoring to know what the government has been up to. The White House has made arguments implying that it is circumventing the law (see all those signing statements), but refuses, even under congressional subpoena, to describe how and in what circumstances it is doing so. Keeping secrets in the name of national security has generally been deemed a legitimate and necessary function of government. The problem is this president and this administration. The executive branch has a tremendous amount of flexibility in deciding what falls under the category of "national security." For those who don't trust Bush or Dick Cheney, that is incredibly frightening.
That is why lawmakers and groups like the ACLU are determined to keep nipping at the administration's heels in what seems lately to be a fruitless endeavor to get officials to fess up. Yesterday, we explored the inventive (and somewhat unbelievable) way Cheney is dodging a Senate Judiciary Committee subpoena. Today, we'll take a quick look at how the judiciary may get that nut (the administration, not Cheney) to crack.
On Aug. 31, the Bush administration will be required to submit a filing responding to an ACLU brief requesting information on the FISA court's orders limiting the NSA program. Jameel Jaffer, director of the ACLU's National Security Project, says he doesn't expect the White House to be forthcoming. But the court gets to be the tiebreaker, which is potentially good news for the ACLU.
The reason? In May, officials said they could not swear that the White House was keeping its January promise of running all domestic surveillance requests past the FISA court. Sometime after that, the FISA court again ordered the administration to amend the NSA program.
"We want to know what the FISA court authorized and what it prohibited, because this administration has said FISA had to be amended because of what the FISA court decided," Jaffer said, referring to the Protect America Act, which more or less sanctions the administration's sweeping approach to international surveillance. Congress hastily passed it before the recess.
"If the legislation is necessary because of what the FISA court did, then we need to know what the FISA court did," Jaffer said.
Though the FISA court generally keeps its inner workings tightly under wraps, the White House's stated disregard for the role it is meant to serve -- overseeing violations of the Fourth Amendment -- may not endear it to the administration's side when all the final briefings are filed. Jaffer said the ACLU will have until Sept. 14 to reply to the administration's Aug. 31 filing, after which the court will make a decision on whether to release the orders.
The administration has reason to fear the legal battle that may ensue. It's already aware the program is vulnerable; the January announcement that the FISA court would oversee surveillance requests was made before a federal court ruling against the program went to appeal.
Another big weakness in the program is that officials in the Justice Department who've actually seen it at work say it's unconstitutional -- at least, in previous incarnations -- which we know from the testimony of ex-DOJer James Comey, among others. FBI Director Robert Mueller says that the parts of the program determined to be illegal were scrapped, but again, officials have said repeatedly that as the unitary executive, Bush may do an end-run around the law if it's in the interest of national security.
Whether you take that to mean he has done so, is actively doing so, or simply reserves the right to do so probably depends on your assessment of the president. Taken to a logical extreme, the unitary executive argument basically translates to Bush thumbing his nose at both Congress and the Constitution (along with the judicial officers tasked with upholding it). For obvious reasons, it's a difficult argument to bring before the courts.
As for the Congress, the judiciary may also be its final hope. So long as Bush reserves the right to fuse FISA with the post-9/11 Authorization to Use Military Force -- some officials argue that by their interpretation of AUMF, the NSA program is legal -- veto-proof legislation setting boundaries on counterterrorism surveillance will probably be ignored.
Most of what's been discussed has to do with principles, not the nuts and bolts, of the amended version of FISA. The act requires updating and expanding based on technological advancements alone. The New Republic's Benjamin Wittes finds that the new law -- which sunsets in six months -- may not be as draconian as critics say it is. With the caveat, of course, that how the law is administered is everything, and we don't know anything about that yet.
Posted at 8:00 PM
Posted to:
Bush Administration, Congress, Constitution, James Comey, President Bush, Robert Mueller, Terrorism
Share via
