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 Editorials | May 2007 
Spying on Americans
 The New York Times
For more than five years, President Bush authorized government spying on phone calls and email to and from the United States without warrants. He rejected offers from Congress to update the electronic eavesdropping law, and stonewalled every attempt to investigate his spying program.
Suddenly, Mr. Bush is in a hurry. He has submitted a bill that would enact enormous, and enormously dangerous, changes to the 1978 law on eavesdropping. It would undermine the fundamental constitutional principle — over which there can be no negotiation or compromise — that the government must seek an individual warrant before spying on an American or someone living here legally.
To heighten the false urgency, the Bush administration will present this issue, as it has before, as a choice between catching terrorists before they act or blinding the intelligence agencies. But the administration has never offered evidence that the 1978 law, the Foreign Intelligence Surveillance Act, hampered intelligence gathering after the 9/11 attacks. Mr. Bush simply said the law did not apply to him.
The director of national intelligence, Michael McConnell, said yesterday that the evidence of what is wrong with FISA was too secret to share with all Americans. That’s an all-too-familiar dodge. Senator Dianne Feinstein, Democrat of California, who is familiar with the president’s spying program, has said that it could have been conducted legally. She even offered some sensible changes for FISA, but the administration and the Republican majority in the last Congress buried her bill.
Mr. Bush’s motivations for submitting this bill now seem obvious. The courts have rejected his claim that 9/11 gave him virtually unchecked powers, and he faces a Democratic majority in Congress that is willing to exercise its oversight responsibilities. That, presumably, is why his bill grants immunity to telecommunications companies that cooperated in five years of illegal eavesdropping. It also strips the power to hear claims against the spying program from all courts except the Foreign Intelligence Surveillance Court, which meets in secret.
According to the administration, the bill contains “long overdue” FISA modifications to account for changes in technology. The only example it offered was that an email sent from one foreign country to another that happened to go through a computer in the United States might otherwise be missed. But Senator Feinstein had already included this fix in the bill Mr. Bush rejected.
Moreover, FISA has been updated dozens of times in the last 29 years. In 2000, Lt. Gen. Michael Hayden, who ran the National Security Agency then, said it “does not require amendment to accommodate new communications technologies.” And since 9/11, FISA has had six major amendments.
The measure would not update FISA; it would gut it. It would allow the government to collect vast amounts of data at will from American citizens’ email and phone calls. The Center for National Security Studies said it might even be read to permit video surveillance without a warrant.
This is a dishonest measure, dishonestly presented, and Congress should reject it. Before making any new laws, Congress has to get to the truth about Mr. Bush’s spying program. (When asked at a Senate hearing yesterday if Mr. Bush still claims to have the power to ignore FISA when he thinks it is necessary, Mr. McConnell refused to answer.)
With clear answers — rather than fearmongering and stonewalling — there can finally be a real debate about amending FISA. It’s not clear whether that can happen under this president. Mr. Bush long ago lost all credibility in the area where this law lies: at the fulcrum of the balance between national security and civil liberties.
Administration Pulls Back on Surveillance Agreement
James Risen - NYTimes
Washington - Senior Bush administration officials told Congress on Tuesday that they could not pledge that the administration would continue to seek warrants from a secret court for a domestic wiretapping program, as it agreed to do in January.
Rather, they argued that the president had the constitutional authority to decide for himself whether to conduct surveillance without warrants.
As a result of the January agreement, the administration said that the National Security Agency’s domestic spying program has been brought under the legal structure laid out in the Foreign Intelligence Surveillance Act, which requires court-approved warrants for the wiretapping of American citizens and others inside the United States.
But on Tuesday, the senior officials, including Michael McConnell, the new director of national intelligence, said they believed that the president still had the authority under Article II of the Constitution to once again order the N.S.A. to conduct surveillance inside the country without warrants.
During a hearing Tuesday of the Senate Intelligence Committee, Mr. McConnell was asked by Senator Russ Feingold, Democrat of Wisconsin, whether he could promise that the administration would no longer sidestep the court when seeking warrants.
“Sir, the president’s authority under Article II is in the Constitution,” Mr. McConnell said. “So if the president chose to exercise Article II authority, that would be the president’s call.”
The administration had earlier argued that both the president’s inherent executive powers under Article II of the Constitution, as well as the September 2001 Congressional authorization to use military force against Al Qaeda, provided him with the power to conduct surveillance without warrants.
Mr. McConnell emphasized that all domestic electronic surveillance was now being conducted with court-approved warrants, and said that there were no plans “that we are formulating or thinking about currently” to resume domestic wiretapping without warrants.
“But I’d just highlight,” he said, “Article II is Article II, so in a different circumstance, I can’t speak for the president what he might decide.”
The exchange came as the administration is seeking new legislation to update the surveillance act to expand the government’s surveillance powers, in part to deal with vast changes in communications technology since 1978, when the measure was enacted.
The White House says that the outmoded rules embedded in the law mean that the government cannot eavesdrop on some telephone calls, email and other communications that do not involve Americans or impinge on the privacy rights of people inside the United States.
While administration officials, citing national security concerns, have declined to discuss publicly what communications gaps they wish to plug, their proposed legislation seems designed to single out so-called “transit traffic,” purely international telephone calls and email that go from one foreign country to another, but happen to be digitally routed through the United States telecommunications system.
The administration’s proposal would also provide legal immunity for telecommunications companies that cooperated with the National Security Agency’s surveillance program without warrants before it was brought under the surveillance act in January. It would also provide legal protections for government workers who took part in the N.S.A. program.
Several Democratic lawmakers expressed frustration on Tuesday that the administration had not provided documents related to the National Security Agency program, which the White House called the Terrorist Surveillance Program. They suggested that they would be reluctant to agree to a change in the surveillance law without more information from the White House.
“To this day, we have never been provided the presidential authorization that cleared that program to go or the attorney general-Department of Justice opinions that declared it to be lawful,” said Senator Sheldon Whitehouse, Democrat of Rhode Island. “Where’s the transparency as to the presidential authorizations for this closed program? That’s a pretty big ‘we’re not going to tell you’ in this new atmosphere of trust we’re trying to build.” |
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