July 27th, 2006
There can be no question that President Bush has expanded the national security prerogatives of the executive branch. Events in recent years have made a persuasive case that the executive alone possesses the necessary tools for expedient and confidential action in defense of the country. But as his term has progressed, the president has experienced increasing opposition to his expansive view of executive prerogatives. Among the most controversial of his administration's actions has been the National Security Agency's (NSA) warrentless surveillance program. In recent weeks, this once-secret program has faced its most serious challenge to date, opening the door for the other branches of government to have their say.
In December 2005, the New York Times broke the story that the NSA had been conducting surveillance on the communications of persons within the United States, including U.S. citizens. Although wiretapping itself is neither new nor necessarily illegal, the NSA program was conducted without judicial warrants of any kind. Supporters of aggressive surveillance techniques have long argued, with some merit, that the process of securing a proper surveillance warrant was too time-consuming and too public for certain situations. In response to these concerns, as well as to the Watergate-era excesses of the FBI and CIA, Congress passed the Foreign Intelligence Surveillance Act (FISA) in 1978. Among other things, FISA established a special court to review warrant requests for electronic surveillance in the context of foreign intelligence gathering. FISA also allowed these special courts to issue warrants retroactively, up to three days after the initial wiretap. As suggested by its title, FISA's intended goal was to give authorities a legal, expedient, and confidential means for conducting surveillance on spies and other foreign agents. Since 9/11, FISA has been expanded to incorporate surveillance against terrorists.
The Bush administration, however, chose to operate outside of the FISA process. As the New York Times story and subsequent reports outlined, the administration authorized the NSA to conduct surveillance without warrants of any kind. At the very least, the administration confirmed that it had monitored international phone calls in which one party was in the United States. Many legal scholars suggested that such activity constituted a violation of the FISA statute. But the Bush administration defended its actions in two other ways. First, it claimed that the Authorization to Use Military Force (AUMF) passed immediately following the 9/11 attacks gave the executive the authority to violate FISA in the course of the “war on terror.” And second, the administration claimed that the executive possessed the inherent authority to violate FISA in the course of fulfilling its constitutionally prescribed responsibilities as commander-in-chief of the armed forces.
That the administration more or less acknowledged that it had secretly violated a federal statute, and that it proceeded to defend its actions so vigorously, suggests that it saw great value in the NSA program. From a law enforcement perspective, the advantages of such a program are clear. Although the process of seeking a surveillance warrant via the FISA court was designed to be quicker and more confidential than doing the same through normal courts, it still represented a bureaucratic process, with its own set of potential delays and complications. As 9/11 and subsequent terrorist attacks have demonstrated, delays stemming from cumbersome law enforcement processes can be fatal. For an administration that saw itself at war with an ambitious and secretive enemy, the appeal of immediate, warrantless wiretapping is readily apparent.
Equally apparent, at least for critics of the administration's program, was the danger of such warrantless wiretapping. The program effectively cut the judiciary out of the law enforcement process. On constitutional grounds, this was at best questionable. How could the various branches of government effectively check each other when one branch reserves the authority for a certain program—and, indeed, the sole knowledge of that program—to itself? Such behavior places an extraordinary and unnecessary level of responsibility on a single branch of government, a responsibility that could be mismanaged or abused without anyone knowing it. Constitutional principles aside, the near-unanimous consensus among legal experts that the NSA program violated the FISA statute represented a clear strike against the administration.
In recent weeks, Congress has become more vocal in addressing the NSA program. Sen. Arlen Specter (R-PA), an early critic of the administration's warrantless wiretapping, announced the outlines of a compromise solution. The senator pledged to introduce a bill that would amend FISA to extend the time allowed for warrantless wiretaps from three days to seven, allow for “roving wiretaps” tied to specific individuals and not just to specific phone lines or email addresses, and allow the NSA to monitor international calls routed through the United States without a FISA warrant. The president agreed to sign such a bill, and in return, he pledged to voluntarily submit the NSA program to the FISA court to rule on its constitutionality. Specter claimed the compromise represented “a recognition by the president that he does not have a blank check.”
Critics were quick to identify flaws in Specter's compromise. His proposed bill would bestow legality to administration activities that have been widely criticized as presently illegal. The compromise also stipulates that the administration voluntarily submit the NSA program—in its entirety—for review by the FISA court. This poses several complications. First, the president has only pledged to do this voluntarily and without any congressional mandate. Second, he would submit the program for retroactive approval in its entirety, without any consideration of individual cases of warrantless wiretapping. And third, the FISA court was specifically created to rule on surveillance warrant requests by the federal government. It has never ruled on the constitutionality of entire government programs, and unlike courts in the traditional federal judiciary, it was never designed to do so. Some have pointed out that such a compromise would short-circuit the numerous challenges to the program already working their way through the traditional court system. Sen. Patrick Leahy (D-VT), the Judiciary Committee's ranking member, noted that the compromise represented an exceedingly good deal for the president: “[President Bush] is saying ‘if you do every single thing I tell you to do,' I will do what I should have done anyway.”
Specter's compromise is not the only attempt by Congress to address the NSA program. In June, Rep. Adam Schiff (D-CA) co-sponsored an amendment to an appropriations bill that would have withheld money from the program. The amendment failed, but it drew 23 Republican supporters. Rep. Heather Wilson (R-NM) has proposed legislation that would allow the government to monitor the communications of suspected terrorist targets without a court order “for a period not to exceed 45 days following a terrorist attack” and require congressional certification for any extensions. Wilson described Specter's compromise as “a little odd to me.”
The debate over warrantless wiretapping may appear to be one confined to the realm of domestic policy. But the Bush administration has always defined its “war on terror” as an all-encompassing struggle, consisting of military, financial, and legal components. Challenges to the NSA program, then, also constitute challenges to the executive's expansive definition of its own war powers. A combination of factors—the administration's current unpopularity, weariness with global strife, the absence of a major terrorist attack in the United States since 9/11—has increased popular and institutional resentment toward such unfettered exercise of war powers. As the Specter's proposed compromise over the NSA program proves, the Bush administration knows that its days of unrestricted war powers are over. And as the ensuring debate will only prove further, such days will be long in returning.
Daniel Widome is a San Francisco-based writer and foreign policy analyst. He can be reached at Daniel.Widome@gmail.com.