Spying on Americans

Sunday, December 18, 2005; B06

IN THE WAKE of the Sept. 11, 2001, attacks, the New York Times reported last week, President Bush authorized the National Security Agency to conduct electronic surveillance of hundreds of U.S. citizens and residents suspected of contact with al Qaeda figures -- without warrants and outside the strictures of the law that governs national security searches and wiretaps. The rules here are not ambiguous. Generally speaking, the NSA has not been permitted to operate domestically. And the Foreign Intelligence Surveillance Act (FISA) requires that national security wiretaps be authorized by the secretive FISA court. "A person is guilty of an offense," the law reads, "if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute" -- which appears, at least on its face, to be precisely what the president has authorized.

Mr. Bush, in his weekly radio address yesterday, defended his action, chastised the media for revealing it, and suggested both that Congress had justified this step by authorizing force against al Qaeda and that such spying was consistent with the "constitutional authority vested in me as commander in chief." But there is a reason the CIA and the NSA are not supposed to operate domestically: The tools of foreign intelligence are not consistent with a democratic society. Americans interact with their own government through the enforcement of law. And in those limited instances in which Americans become intelligence targets, FISA exists to make sure that the agencies are not targeting people for improper reasons but have sufficient evidence that Americans are actually operating as foreign agents. Warrantless intelligence surveillance by an executive branch unaccountable to any judicial officer -- and apparently on a large scale -- is gravely dangerous.

Why the administration even deems it necessary remains opaque. Mr. Bush said yesterday said that the program helped address the problem of "terrorists inside the United States . . . communicating with terrorists abroad." Intelligence officials, the Times reported, grew concerned that going to the FISA court was too cumbersome for the volume of cases cropping up all at once as major al Qaeda figures -- and their computers and files -- were captured. But FISA has a number of emergency procedures for exigent circumstances. If these were somehow inadequate, why did the administration not go to Congress and seek adjustments to the law, rather than contriving to defy it? And why in any event should the NSA -- rather than the FBI, the intelligence component responsible for domestic matters -- be doing whatever domestic surveillance needs be done?

As with its infamous torture memorandum, the administration appears to have taken the position that the president is entitled to ignore a clearly worded criminal law when it proves inconvenient in the war on terrorism. That argument is not as outlandish in the case of FISA as it is with respect to the torture laws, since administrations of both parties have always insisted on the executive's inherent power to conduct national security surveillance. Still, FISA has been the law of the land for 2 1/2 decades. To disrupt it so fundamentally, in total secret and without seeking legislative authorization, shows a profound disregard for Congress and the laws it passes.

What's more, Mr. Bush's general assurances that the program is legal offer no indication of what legal authority, if any, permits this surveillance of what he described as "the international communications of people with known links to al Qaeda and related terrorist organizations." In the torture context, the administration abandoned the argument that the president could simply disregard laws prohibiting brutal interrogations and moved on to other legal theories. There is reason to think something similar has happened here. Does the administration now claim that warrantless surveillance of hundreds of people by an agency generally barred from domestic spying is consistent with FISA? Does it claim that the congressional authorization to use military force against al Qaeda somehow unties the president's hands? Other than claiming it has done nothing illegal, the administration is not saying.

Congress must make the administration explain itself. In the aftermath of the revelations, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said hearings on the matter would be a high priority in the coming year. That's good. It should be unthinkable for Congress to acquiesce to such a fundamental change in the law of domestic surveillance, particularly without a substantive account of what the administration is doing and why.