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January 25, 2006

Politics or Security?
Posted by Morton H. Halperin

Of all the ways in which the Bush administration's actions actually reduce American security, none is more dangerous or more irresponsible then its effort to turn legitimate debates about how to combat terrorism into political campaign issues.

Starting with the Patriot Act right after 9/11 and continuing with its belated support of a Homeland Security Department and now with its response to reports of warrantless NSA surveillance,  President Bush has allowed Karl Rove to set the tone and to use the issue to attack Democrats rather than to seek a consensus about how to deal with terrorist threats while protecting civil liberties.

The administration response to the New York Times account of the NSA warrantless surveillance program is a textbook case of irresponsible behavior.  After conducting the program in secret, the President lashed out at the Times for publishing the story. He first said that any debate would harm national security.  Now he says he welcomes a debate.  He asserts that he only wants to listen to al Qaeda talking to Americans and his critics object to that.

This is of course total nonsense.

Here is how the President described the program in a speech in Kansas the other day:

"What I'm talking about is the intercept of certain communications emanating between somebody inside the United States and outside the United States; and one of the numbers would be reasonably suspected to be an al Qaeda link or affiliate...  These are not phone calls within the United States.  It's a phone call of an al Qaeda, known al Qaeda suspect, making a phone call into the United States."

If this was all there was, there would be no violation of FISA and no need to give NSA new authority.  FISA poses no limits on the surveillance of phone calls made abroad by anyone,  let alone a known terrorist.  The fact that the call is to an American in the United States does not require that the surveillance end -- only that the identify of the American not be revealed unless necessary to understand the interception.  If it were more effective to tap the phone of the American talking to the terrorist, a FISA warrant could easily be obtained to permit the interception of those calls.

So we all agree that we should be able to listen in when a member of al Qaeda calls an American and most experts agree that the President did not need to go outside of FISA to permit this.  Rather than engage in that discussion, the White House accuses its opponents of living in a pre-9/11 world and not understanding the threat.   

General Hayden's talk to the press club this week comes much closer to what the administration should be doing.   He provided a relatively clear description of what NSA is now doing and tried to make the case for why it needs to be done and why FISA does not work.   He was at pains to stress the commitment of NSA to the protection of civil liberties.   Reading between the lines, here is what he seemed to be saying:

A person who the government suspects is a member of al Qaeda (but is far from meeting the probable cause standard required by FISA and the Fourth Amendment) calls someone in the United States.  NSA is not able to learn quickly enough about the receiver of the call to know if he is a US person or to establish probable cause that he is a member of al Qaeda or supporting its terrorist efforts in the US (the FISA and constitutional standard for a warrant). In this situation NSA puts a tap on the phone of the suspected US person for some brief period of time in order to determine if he qualifies for a FISA tap or an FBI investigation.

Wanting to do this is certainly not irresponsible, but the program clearly violates FISA.  The Administration responds by saying that it was authorized by the Resolution to Use Military Force -- an absurd position rejected by almost everyone outside the administration including many Republican Senators.

Alternatively, the administration asserts that the President has inherent authority to conduct warrantless surveillance.  Here is what the President says:

"Federal courts have consistently ruled that a President has authority under the Constitution to conduct foreign intelligence surveillance against our enemies.  Predecessors of mine have used that same constitutional authority."

The problem with this argument is that all of these court rulings came prior to the enactment of FISA.  As Justice Jackson pointed out in his famous concurrence in the Steel Seizure case, the President's power changes when Congress enacts a procedure for dealing with a problem and asserts, as it did in FISA, that this is the sole means to deal with the problem.  In fact, the conference report for FISA ends with a reference to the Jackson opinion and asserts that Congress intends to take away whatever power to conduct electronic surveillance without a warrant the President had prior to the enactment of FISA and which it can constitutionally restrict.

While reserving their constitutional rights, every President since then has publicly committed himself to following FISA, including President Bush, who volunteered (prior to the New York Times story) that electronic surveillance in the US occurs only with a warrant.   As far as we know, no President other than Bush authorized any surveillance in violation of FISA. No court has been confronted with the question of whether this program or any other post-FISA warrantless surveillance was constitutional and one cannot be certain how the Supreme Court would rule.

But we should not find out.  The President, when he determined that this program was needed, should have come to the Congress.  Now we are faced with a serious constitutional crisis. Congress  needs to conduct initial hearings and then a full staff investigation followed by further public hearings.  It needs to consider what more needs to be done to compel the President to obey the laws on surveillance and on congressional consultation.  Only when a new bargain is struck on those issues and the President calls off the partisan political attack and agrees to follow the rules enacted by Congress can we have a serious conversation about whether more authority to conduct surveillance would be desirable and can be authorized consistent with the Constitution.


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It will take impeachment to get Bush to change his stance on this.

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