Introduction

The post-9/11 battle over the National Security Agency’s wiretapping of U.S.citizens in connection with suspected terrorists abroad has generated heated debate in Washington. President Bush has described the domestic surveillance program as vital to protecting the United States from terrorist attacks. “If al-Qaeda is calling someone in America, we want to know what they're saying on that call,” he said. Yet critics charge the program violates the U.S. Constitution’s separation of powers, its Fourth Amendment protections from illegal search and seizure, and the 1978 Foreign Intelligence Surveillance Act (FISA), which established a secret court to grant surveillance warrants in precisely such cases. The issue prompted Democrats to accuse the executive branch of overreaching. The Bush administration, in turn, reversed its position on FISA authority and vowed to consult the secret court for future surveillance.

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The Need for Speed

In the immediate aftermath of 9/11, the Bush administration opted not to seek court approval before conducting wiretaps on the communications of terrorism suspects to and from the United States. Former Attorney General Alberto R. Gonzales argued that the president’s authority to spy on U.S. “persons” communicating with suspected terrorists abroad was granted by Congress one week after September 11, 2001. The Authorization for Use of Military Force (AUMF), without specifically mentioning wiretapping, grants the president broad authority to use all necessary force “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the [9/11] terrorist attacks”; this includes, administration officials argue, the powers to secretly gather intelligence on al-Qaeda and associated groups.

Their argument was upheld by the Supreme Court’s 2004 ruling in Hamdi v. Rumsfeld (PDF), which, though related to the detention of U.S. citizens during wartime, suggests that the AUMF affords the president implicit powers to monitor U.S. citizens corresponding with suspected terrorists. “It's long been the case, as long as we've had electronic surveillance, that the United States has engaged in electronic surveillance of the enemy during a time of war,” Gonzales said in a January 24, 2006, interview with National Public Radio. Gonzales said Congress was informed when Bush notified the so-called gang of eight, mostly high-ranking members of both houses.

Critics Counter

Opponents offer a variety of arguments countering the administration’s rationale. Among the most common:

• It is illegal. Critics often point to a 1972 Supreme Court case, United States v. United States District Court (referred to as the “Keith” case) involving a plot to blow up a Central Intelligence Agency (CIA) office. The court ruled the executive branch, even when issues of national security are at stake, has no authority to spy on U.S. citizens on U.S. soil without a warrant (The White House says this decision does not involve communications with foreign entities so its decision is irrelevant). Critics’ primary argument is that the White House is violating FISA, which established a secret court in 1978 expressly for the purpose of this kind of covert surveillance; in its history, FISA has rarely denied the executive branch a wiretapping warrant and even allows federal agencies to request “after-the-fact” warrants for up to seventy-two hours. “Congress was very clear about procedures to use for domestic surveillance,” says Carl W. Tobias, a professor of law at the University of Richmond. Further, critics in Congress argue that AUMF, passed in the days after 9/11, does not explicitly authorize “warrantless” wiretapping on U.S. citizens.
• It is ineffective. According to a January 17, 2006, New York Times article, most of the tips by the wiretaps led to “dead ends” and swamped the Federal Bureau of Investigation (FBI). Administration officials, however, assert the wiretaps have saved lives. On January 23, 2006, General Michael V. Hayden, then-principal deputy director for national intelligence and now CIA director, said if such a program been in place prior to September 11, 2001, the terrorist attacks may have been avoided. Vice President Dick Cheney, in a speech to the Heritage Foundation on January 23, 2008, said “the program has uncovered a wealth of information that has foiled attacks against the United States; information that has saved countless innocent lives.”
• It violates Americans’ civil liberties. There have been a slew of separate court cases against the National Security Agency (NSA) by groups like the American Civil Liberties Union and Greenpeace, as well as by scholars like the Hoover Institution’s Larry Diamond and journalists like Vanity Fair’s Christopher Hitchens, who communicate regularly with citizens in the Middle East. U.S. telecom company AT&T has been sued by the Electronic Frontier Foundation for collaborating with the NSA in intercepting phone calls with court approval. White House officials stress that unless a U.S. citizen is communicating with a suspected terrorist overseas, their correspondence would not be monitored.
• It has been presented inconsistently. Gonzales suggested that the White House originally considered legislation to legalize its secret wiretaps but thought it would not pass Congress. He and other officials later backtracked and said a bill to reform FISA was not sought because the program’s details would be made public, thus endangering its effectiveness. Critics have also pointed to earlier contradictory statements made by administration officials denying the existence of the domestic-spying program. “When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so,” President Bush said in an April 2004 speech in Buffalo. “Nothing has changed.”
• It was enacted without congressional oversight. Most on Capitol Hill outside of the gang of eight were kept out of the loop on the domestic-spying program. “What is unique about this one particular program among all the other sensitive NSA programs that justifies keeping Congress in the dark?” Sen. Jay Rockefeller (D-WV), a member of the gang of eight and chairman of the Senate Intelligence Committee, asked. Gonzales has said that notifying all congressional members was unnecessary because of the AUMF granted by Congress after 9/11.

White House and FISA

Administration officials have maintained that FISA is an outdated law-enforcement mechanism that is too time-consuming and not conducive to current intelligence-gathering demands. “FISA does not anticipate a post-September 11 situation,” wrote John R. Schmidt, former associate attorney general, in the Chicago Tribune in December 2005. Director of National Intelligence Michael McConnell reiterated those concerns in a June 2007 interview with CFR.org: “The threat has increased, the intent is stated, and the way the wording in the current law is captured inhibits or prevents us from being successful.” Administration officials have also portrayed the program as one not of domestic surveillance but of monitoring terrorists abroad and publicly refer to the operation as the “Terrorist Surveillance Program.” Opponents of the program refer to it as “domestic spying.”

Under political pressure, Gonzales announced in January 2007 plans to disband the warrantless surveillance program (PDF) and cede oversight to the Foreign Intelligence Surveillance Court, a secret court that administers FISA. But questions about the legality of the program lingered in Congress. In May 2007, congressional hearings revealed that top Justice Department officials, including then-Attorney General John Ashcroft, had expressed reservations (WashPost) about the program back in 2004, prompting the White House to push the program forward without the Justice Department’s consent. On August 27, 2007, Gonzales resigned, at a time of constant congressional questioning over his role in overseeing domestic surveillance. His successor, Attorney General Michael Mukasey, initially troubled some Democrats by suggesting during confirmation hearings that it is within the commander in chief’s constitutional powers to ignore federal laws governing wiretaps (NYT) on certain occasions.

Path to FISA Reform

Washington’s vow to seek FISA approval for domestic surveillance was short-lived. In July 2007—weeks before Gonzales stepped down—intelligence officials approached lawmakers seeking emergency legislation to broaden their wiretapping authority. The request came on the heels of a ruling by the court overseeing FISA that impacted the government’s ability to intercept foreign communications passing through telecommunications “switches” on U.S. soil. According to a Senate committee report (PDF), the court’s decision “ led to degraded capabilities in the face of a heightened terrorist threat environment.” Rapid action was needed, the intelligence officials argued, and Congress responded. On August 5 President Bush signed the Protect America Act of 2007, which gave the attorney general and the director of national intelligence the power to approve international surveillance, rather than the special intelligence court. It also said warrants are unnecessary for surveillance of a person “reasonably believed” to be located overseas. But the measure was intended as a stopgap, and expires on February 1, 2008.

What the Future Holds

The Bush administration has continued to lobby for permanent reforms, as well as a provision providing retroactive immunity to phone companies assisting government eavesdropping efforts. Communication providers are facing dozen of costly lawsuits for their reported role in the program; White House officials say they need lawsuit-free companies to ensure national security. “The intelligence community doesn't have the facilities to carry out the kind of international surveillance needed to defend this country since 9/11,” Vice President Cheney said at the Heritage Foundation. “In some situations there is no alternative to seeking assistance from the private sector.”

Congress has drafted legislation to address the administration’s concerns, but disagreement over the immunity measure has stalled progress. House Speaker Nancy Pelosi (D-CA) instructed Rep. John Conyers, Jr. (D-MI) and Rep. Silvestre Reyes (D-TX) to draft a new bill that “responds comprehensively to the administration's proposal while addressing the many deficiencies” in the approved law. That proposal, which passed the House in November 2007, continued to hold telecoms accountable for wiretap violations. On the Senate side, Democratic lawmakers are split on the immunity issue. In October 2007, a Senate Intelligence committee approved a bill that granted telecoms immunity from prosecution, but a separate plan championed by the Judiciary Committee took the House’s view. Senate Majority Leader Harry Reid (D-NV), aware that a compromise remains “doubtful” before the expiration, urged President Bush in late January 2008 to support a one-month extension of the nation’s foreign surveillance program.