The Wrong Wiretap Debate
As quickly as you can say the words "Karl Rove," the debate over the National Security Agency's anti-terrorist surveillance program is degenerating into a partisan squabble. Rather than seeking a compromise that would anchor the program in law, both the administration and its critics are pursuing absolutist agendas -- insisting on the primacy of security or liberty, rather than some reasonable balance of the two. This way lies disaster.
The NSA surveillance debate truly deserves the overworked moniker "historic." This is a fundamental test of the authority of Congress and the executive in wartime. It pits the president's power as commander in chief under Article II of the Constitution against specific legislative rules mandated by Congress in the 1978 Foreign Intelligence Surveillance Act. A stable, legal foundation for the NSA program can come by placing it under FISA jurisdiction, or by amending FISA, or perhaps by a judicial review that might support the administration's argument that Article II trumps FISA. Instead, we have none of the above.
The administration is trying to ramrod the program through, shamelessly summoning families of Sept. 11 victims to intimidate political opposition. Rove evidently has defined anti-terrorist surveillance as a new "wedge" issue -- you're either with the administration or you're for Osama bin Laden. Attorney General Alberto Gonzales mouthed the no-compromise rhetoric before the Senate Judiciary Committee Monday, but policy decisions on this issue are made in the bunker occupied by Vice President Cheney and his chief of staff, David Addington. There is a lawyers' revolt brewing at Justice, State and the CIA against Addington's diktats, as outlined in the Feb. 6 edition of Newsweek, but so far the rule-of-law advocates haven't swayed President Bush.
Liberal interest groups are also refusing to compromise. I'm told they were urging Democratic members of Congress this week not to amend FISA. They would rather wait until next year, figuring they will have more congressional support after the 2006 elections. They also want to pursue their lawsuit charging that the president's actions are illegal. In the meantime, the NSA's program to "connect the dots" and track potential terrorists remains in legal limbo.
The surveillance issue will test whether America really is a nation of laws. Sen. Lindsey Graham, a Republican who is one of a handful of legislators refusing to play the partisan game, argues that the NSA debate cries out for a modern equivalent of Marbury v. Madison , the 1803 case that established the parameters of judicial review of Congress and the executive branch. He and Sen. Arlen Specter are urging the administration to seek legal review of the NSA program, through the FISA court or some other means. Rep. Jane Harman, the ranking Democrat on the House intelligence committee and one of the few people who know what the NSA program is, argues that it can be accommodated under existing FISA rules. Others favor amendments to FISA to better embed the program in law. Any of these approaches would be better than the administration's insistence that there isn't any legal problem at all.
The air was thick with historical analogies at Monday's session of the Judiciary Committee, but there's one that is actually worth studying. When the Southern states seceded in 1861, President Lincoln took radical -- and almost certainly unconstitutional -- steps to preserve the Union. He raised an army without legislative authority, blockaded Southern ports, arrested a Baltimore militia commander without charges in an effort to intimidate Maryland against seceding and, when the Supreme Court tried to block him, suspended habeas corpus.
But soon after taking these emergency steps, Lincoln went to Congress to seek explicit legislative authority for what he had done. "These measures, whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity," Lincoln wrote in his July 4, 1861, message to Congress seeking retroactive legal authority. Lincoln told Congress he had done what he thought was his duty in using his war powers. "You will now, according to your own judgment, perform yours."
Lincoln did precisely what Bush has so far refused to do. He sought clear legislative authority for his actions, knowing that he could not win the Civil War except by building a national consensus under a sound legal canopy. "Lincoln never did anything to prove a point. He had one goal, which was to keep the Union together and win the war," says Garrett Epps, a visiting professor of constitutional law at American University. That unifying vision is one the Bush administration and its critics must embrace. Either there is a center line in the surveillance debate, or there is no line at all.