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Shayana Kadidal

Shayana Kadidal

Posted: March 28, 2006 02:07 PM

Spying Smokescreens


Several more U.S. Senators just entered the competition over who can build the largest smokescreen for President Bush's illegal warrantless wiretapping.

On Tuesday, the Senate Judiciary Committee considers Senator Mike DeWine's legislation to essentially legalize the NSA domestic spying program. The bill is cosponsored by Olympia Snowe and Chuck Hagel, two Republican Senators who are often lauded by the Washington Press corps for "challenging" President Bush, but their new bill does not offer any challenge to the President or his illegal domestic surveillance. As one of the lead attorneys in a federal case suing Bush for illegal spying, Center for Constitutional Rights v. Bush, I am particularly concerned about the legislation.

Warrantless surveillance -- that is, electronic surveillance without review of some kind by a disinterested judge, either before or immediately after the wiretap is put in place -- is, with very limited exceptions, currently illegal and punishable as a felony. The DeWine bill would legalize warrantless surveillance of international calls and emails whenever the president decides going to the court established by FISA is too much trouble. Periodic after-the-fact briefings by the President to small committees of Congressional leaders would replace judicial oversight entirely.

Both the U.S. Constitution and federal law currently forbid spying on Americans without a warrant, but this bill would purport to legalize such surveillance when it targets people on a "Surveillance List." How do you get on this list?

The President puts you on it. The required qualification is that the President, or presumably his staff, decides you "intend" to advance an "act of international terrorism against the United States." The Senators propose this list be called the "Terrorist Surveillance List" -- which parrots the Administration's PR campaign to shift the debate from warrantless domestic spying (the facts) to "terrorist surveillance" (the spin). Of course, the NSA did not internally describe it its program as "terrorist surveillance" -- that term was first promoted in December 2005 by the conservative website newsmax.com and adopted by the White House a month later.

The DeWine bill also reemphasizes that FISA is available and preferred for wiretapping communications between Americans and persons abroad who are affiliated with terrorism. While this is an admirable sentiment, the problem is that President Bush is violating FISA right now. Congress should address that illegal conduct before passing more legislation about it.

The bill allows information gathered by this warrantless surveillance program to be used before the FISA court to help the government acquire traditional wiretap warrants, although why the government would bother is an open question, since the warrantless surveillance results can themselves be used in a criminal proceeding according to the same sentence in the bill. The bill also makes it a crime for government officials to disclose any information about surveillance under the program, punishable by up to 15 years in prison. (Message: disclosure to Congress: good; disclosure to the American people: very, very bad.)

Under the DeWine bill the House and Senate will create new (i.e. partisan) intelligence subcommittees, which will receive reports every six months containing a "complete discussion" of the "operational details, effectiveness, and necessity" of the program. A March 9 New York Times editorial debunked this substitute for real oversight (referring then to Sen. Roberts' plan for a similarly meaningless subcommittee):

"It's breathtakingly cynical. Faced with a president who is almost certainly breaking the law, the Senate sets up a panel to watch him do it and calls that control. This new Senate plan is being presented as a way to increase the supervision of intelligence gathering while giving the spies needed flexibility. But it does no such thing."

Imagine if the government took this approach to physical warrantless searches: A President approves of a physical break-in without seeking a warrant from a judge. When the burglars are caught, the Senate holds hearings, during which the President's henchmen claim that any further information about the break-in implicates national security, is therefore protected by privilege, and cannot be disclosed, in public session or otherwise. Then Congress responds by passing a law legalizing such break-ins, but with new committees to "oversee" the crimes in the future.

That could never happen after Watergate, right?

Of course not. But not for the reason you think -- that Congress would never pass such a bill. Instead, the reason you may never see such a bill is that it would be redundant: if Congress believes that the Constitution allows warrantless wiretapping for national security purposes, there is no principled reason why physical searches should not be permissible as well.

In fact, in Senate testimony on February 6, Attorney General Alberto Gonzales actually refused to rule out the possibility that the present administration has engaged in warrantless physical searches of homes or offices on similar grounds. Here is an excerpt of the exchange:

SENATOR SCHUMER: "Has the government searched someone's home, an American citizen, or office, without a warrant since 9/11, let's say?"

ALBERTO GONZALES: "To my knowledge, that has not happened under the terrorist surveillance program, and I'm not going to go beyond that."

Most of the administration's rationales for warrantless electronic surveillance of international phone calls and emails could be extensible to justify warrantless physical searches at home. Gonzales later said his testimony was directed only to those "specific NSA activities that have been publicly confirmed by the President" and refused to rule out that other warrantless searches and seizures have taken place. If it turns out that the administration has been breaking and entering without warrants within the United States, will Congress' reaction again be to tidy up after the President by writing the warrant requirement entirely out of the law?