Unauthorized Snooping

Tuesday, December 20, 2005

THE BUSH administration sought yesterday to explain its program of warrantless National Security Agency surveillance. President Bush, Attorney General Alberto R. Gonzales and Gen. Michael V. Hayden all strove to justify the program, under which the NSA has conducted electronic surveillance of hundreds of people domestically since Sept. 11 without warrants from the secret court that is supposed to oversee such snooping.

The snooping appears to violate the Foreign Intelligence Surveillance Act (FISA), but the attorney general says it doesn't. That act, he argues, forbids warrantless domestic wiretapping that isn't authorized by statute, but in authorizing the use of military force against al Qaeda, Congress implicitly authorized the monitoring of overseas calls of those linked to the group. In any event, Mr. Gonzales says, the president has the inherent constitutional authority to conduct such surveillance, whatever the statutes may say. And he's using it only "where we have a reasonable basis to conclude that one of the parties of the communication is either a member of al Qaeda or affiliated with al Qaeda."

As to why the government can't get a warrant, Gen. Hayden talks about the need for "agility" and speed. Mr. Bush says that while the FISA process is okay for ongoing "monitoring" of suspected terrorists, this program is designed to be "quick to detect and prevent."

Nobody objects to monitoring people in the United States who are linked to al Qaeda; facilitating such surveillance is one of FISA's purposes. The other purpose, however, is to provide a check on the executive branch's ability to decide who should be subject to such spying -- to make sure, in other words, that people with no links to terrorism or foreign governments are not erroneously subjected to snooping. The Bush program defeats that purpose by removing the independent court that is supposed to review the proposed surveillance and replacing it with unchecked executive discretion.

Worse still, Mr. Gonzales's phrase "reasonable basis to conclude" seems a long way from the standard to which the FISA court holds the government before authorizing a tap. Gen. Hayden was candid yesterday that this program has what he termed "a subtly softer trigger." And the judgment of who should be deemed linked to al Qaeda is made by the NSA's "operational workforce," he said. In other words, not only is there no judge involved, but the standard for surveillance appears to be low.

It is impossible to believe that Congress, in authorizing the use of force against al Qaeda, understood itself to be making compliance with FISA optional -- particularly because it was, in that same period, relaxing certain provisions of the surveillance statute in the USA Patriot Act. If the authorization of force implied a repeal of a decades-old law that comprehensively regulates domestic surveillance, what other laws does the administration think were repealed?

Still vague, too, is why this program is necessary. Mr. Bush and Gen. Hayden both insist that it has yielded critical information, and the administration claims congressional leaders responded that fixing the FISA process would have been difficult. But swift passage of the Patriot Act suggests that the legislature would not have ignored a pressing problem with intelligence collection.

The administration must be forced to explain itself comprehensively, so Congress can decide how to respond. To the extent that Mr. Bush, in justifying this program, relies on the authorization to use force, Congress should amend that authorization to clarify that it does not supplant domestic espionage laws. If Mr. Bush then identifies problems with FISA that impede intelligence collection, Congress should examine the claim seriously with due attention to civil liberties. But if Mr. Bush claims the authority to defy acts of Congress, he invites a constitutional clash of the highest order. In a constitutional democracy, laws are meant to be followed until they can be changed -- even laws that, a president feels, encumber his ability to wage war.

© 2005 The Washington Post Company