By Candace M. Carroll
Last December, The New York Times revealed that, shortly after the Sept. 11, 2001, attacks, President Bush signed a secret executive order permitting the National Security Agency, without any sort of a warrant, to intercept, eavesdrop on and conduct computer searches of Americans' international telephone calls and e-mail. While the administration has only acknowledged eavesdropping on international calls to and from suspected terrorists, both Attorney General Alberto Gonzales and Gen. Michael Hayden, until recently head of the NSA, have refused to deny the existence of broader programs.
Many prominent Americans, from former President Jimmy Carter to Grover Norquist, have denounced the eavesdropping as illegal under both the Foreign Intelligence Surveillance Act, or FISA, and the Fourth Amendment.
FISA was enacted in 1978, the last time Congress discovered that the NSA was intercepting Americans' international communications. Designed to protect us from illegal surveillance, the act lays out procedures the government must follow to conduct electronic surveillance without the probable cause otherwise required by the Fourth Amendment. FISA permits federal agents to get a special warrant from a secret FISA court, and criminalizes all electronic surveillance not authorized either by that court or the federal criminal code (which provides only for warrants based on probable cause).
FISA warrants aren't hard to get. The FISA court has approved tens of thousands of them, and has only rejected a handful. In an emergency, FISA allows the government to begin its surveillance without a warrant, and provides extra time to get a warrant after the surveillance has begun. But President Bush and the NSA have chosen to ignore FISA.
The administration has offered the following arguments to justify the spying to which it admits:
--Congress authorized the spying when it passed the Authorization to Use Military Force Against al-Qaeda. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., has said this argument "defies logic and plain English." There's not a word in that resolution about electronic eavesdropping and nothing that would override FISA's explicit prohibitions.
--The president has inherent authority under Article II of the Constitution, because he is commander in chief of the armed forces. This is the administration's favorite argument, but it's incorrect and very dangerous. The Constitution gives Congress the power to make laws and to regulate the armed forces and requires the president to obey such laws. But President Bush has claimed authority to ignore laws passed by Congress if they conflict with his reading of the Constitution. In fact, he has attached "signing statements" to 750 separate bills he has signed, claiming the authority to ignore vast swathes of the legislation passed by Congress.
--Other presidents approved this type of surveillance. But those presidents acted before Congress outlawed such spying by passing the FISA.
--We could have prevented the Sept. 11 attacks if only we had had this intelligence. This is patently untrue. The 9/11 Commission found that our government had 10 chances to prevent the attacks with the intelligence it had, if only the government had paid attention to it.
--Trust us. We only spy on the bad guys. Wrong. Seymour Hersh, writing in a recent New Yorker, says a government consultant told him that the NSA has monitored the calls of tens of thousands of Americans. Surely not all of them were talking to terrorists.
And it's increasingly clear that the eavesdropping on terrorists is not all the NSA is doing. Several sources report that the NSA is collecting all of the phone numbers called internationally, as well as the addresses of all e-mails sent and received internationally. Computers sift and sort this enormous mass of data, sometimes looking for a key word or a geographical location, to try to identify patterns that will, theoretically, lead to terrorists. Aside from the illegality of this program, it also appears fairly futile: The NSA is said to be drowning in data, and the FBI has complained that the thousands of tips it receives from the NSA lead nowhere and divert its agents from more productive work.
Earlier this month, USA Today reported that the NSA, with the cooperation of several telecommunications companies, has been secretly collecting millions of Americans' domestic phone and Internet records. AT&T is also said to have given the NSA access to its massive databases of past phone and Internet records. Although the companies' provision of this data to the NSA is illegal under the Communications Act of 1934 and subsequent privacy legislation, the FCC has declined to investigate because the NSA's activities are classified.
Our constitutional system of checks and balances is designed to avoid the concentration of power in any of the three branches of government. Congress and the courts are meant to act as a check on executive branch overreaching. In refusing to ask the FISA court to approve their surveillance programs, President Bush and the NSA are not only thumbing their noses at our nation's laws, but are operating outside the Constitution.
These are not arcane or technical points. The administration's actions represent a critical threat to our democracy. The president can no longer be permitted to use the cloak of national security to insulate his administration from the Constitution's requirements. Americans must demand that Congress put a stop to this blatant abuse of executive power.
Carroll is an appellate attorney with the law firm of Sullivan, Hill, Lewin, Rez & Engel, and a member of the San Diego and national boards of the American Civil Liberties Union.
OPED: Spying on Americans
By Candace M. Carroll