Constitutional Experts Criticize NSA E-Surveillance
More than a dozen constitutional law experts disputed the Justice Dept.’s defense of the Bush Administration’s secret, warrantless electronic spying on U.S. citizens, saying in a letter that DoJ’s argument “fails to identify any plausible legal authority for such surveillance.” Former FBI Dir. William Sessions, onetime Deputy Attorney Gen. Philip Heymann and a handful of lawyers who worked in the executive branch under President Bush told Congressional leaders this week that the National Security Agency (NSA) program “appears on its face to violate existing law.”
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The 11-page letter was sent to Senate Majority Leader Frist (R-Tenn.) and Minority Leader Reid (D-Nev.) as well as House Speaker Hastert (R-Ill.) and House Minority Leader Pelosi (D-Cal.) and the chmn. and ranking members of the Senate and House Judiciary and Intelligence committees. The letter, also signed by conservative Hoover Institution scholar Richard Epstein and the deans or former deans of Yale, Stanford and U. of Chicago law schools, came to the same conclusion as an analysis released by the Congressional Research Service late last week (WID Jan 10 p7).
The basic legal issue in question isn’t new, they said, citing a 1978 investigation of privacy violations associated with foreign intelligence surveillance programs, which led to the enactment of the Foreign Intelligence Surveillance Act (FISA). The law, which regulates electronic spying within the U.S., strikes a balance between protecting civil liberties and preserving the “vitally important government purpose” of obtaining valuable intelligence to safeguard national security. Critics have argued that the NSA program illegally bypasses FISA’s authority.
With few exceptions, FISA permits electronic surveillance only upon certain specified showings, and only if approved by a court, the letter said. The statute specifically allows for warrantless wartime domestic electronic surveillance -- but only for the first 15 days of a war. While the DoJ has admitted the NSA program is contrary to FISA provisions, the Administration is arguing that the initiative didn’t violate the law because Congress implicitly authorized warrantless domestic spying when it gave permission to use military force against al Qaeda after the 9/11 terrorist attacks.
DoJ also has pointed to the President’s constitutional authority to collect “signals intelligence” targeted at the enemy and maintained that construing FISA to prohibit such actions would raise constitutional questions. But the letter’s signatories said Congress “indisputably has authority to regulate electronic surveillance” on American soil and the Supreme Court “has never upheld warrantless wiretapping” in the U.S. The Administration should have sought legislative action to change FISA if it was deemed insufficient, they said. “The President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable,” the experts said. FISA Court Chief Judge Colleen Kollar-Kotelly also received the letter.
Meanwhile, Tues. was the 2nd day of the Senate Judiciary Committee’s consideration of Samuel Alito’s nomination to be a Supreme Court justice. The NSA electronic spying controversy and Alito’s thoughts on govt. wiretapping were expected to be part of the week- long hearing. Alito would fill Sandra Day O'Connor’s seat. She was often seen as the crucial swing voter on privacy cases (WID Jan 10 p3). Both chambers of Congress are considering holding hearings on the govt. surveillance program when lawmakers officially start their legislative session later this month.
Epstein explained the reason he’s in such “odd company” is that when an issue deals with important constitutional issues like this one, it must be disaggregated from left and right wing ideologies. In the NSA spying case, the President and the DoJ are just plain erroneous, he told us. “I'm a limited government type who believes in basic checks and balances,” he said, saying the Administration’s actions are “wrong in principle.”
The letter didn’t recommend next steps but Epstein told us Congress needs to hold hearings to dig deeper. While he rebuffed calls from some groups to commission a special prosecutor, which he claims is “entirely dubious” on its own constitutional grounds, Epstein thinks lawmakers must air out the issue when they return from winter recess. Regarding the debate over whether hearings should be open or closed, Epstein said the tactic has typically been “to split the baby.”
The severity of the situation doesn’t rise to the scandalous precedent set by previous administrations, he said: “I don’t regard it as Watergate 2” and “I don’t think we're close to ‘impeachment land’ right now.”