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Surveillance Concessions

Prepared by: Lionel Beehner
February 6, 2007

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In a sign of the changing winds in Washington, the White House has agreed to hand over classified material to Congress on its secret eavesdropping program. It has also allowed a secret intelligence court, established under the 1978 Foreign Intelligence Surveillance Act (FISA), to monitor its electronic surveillance activity. The program, which entailed “warrantless” wiretapping that previously had circumvented review by courts or Congress, came under heavy criticism from civil liberty groups after its exposure by the New York Times in December 2005.

The Bush administration insists it holds “inherent authority” to gather intelligence from U.S. citizens suspected of having ties to al-Qaeda and other overseas terrorists. In recent congressional testimony, Attorney General Alberto R. Gonzalez expressed concern “about the public disclosure that may jeopardize the national security of our country.” The administration’s willingness to work within the FISA system, writes Wendy J. Keefer, formerly a chief of staff in the Justice Department, “should be viewed as an example of the best of government policy development, not the worst.”

But civil libertarians and lawmakers disagree. They say the White House has violated Fourth Amendment protections from illegal search and seizure, not to mention established dangerous precedents concerning separation-of-powers issues. Critics are unsatisfied by the White House’s latest concession because it constitutes only a temporary reprieve: That is, the Bush administration reserves the right to restart the program at any time. It’s “a bit like a bank robber coming into court and arguing that, although he has been sticking up banks for the past half-decade, he has agreed to a temporary halt and therefore he shouldn’t be prosecuted,” writes Professor James Bamford of the University of California-Berkeley in the New York Times.

There are numerous explanations for the Bush administration’s about-face on this issue. The Democrats’ seizure of power in Congress, of course, played an important role. So too did a flurry of legal battles, not only against the U.S. government but also against telecommunications companies accused of illegally handing over private data. Last August, a federal judge in Michigan ruled that the National Security Agency’s (NSA) surveillance program should be halted. If this case were to reach the Supreme Court, some legal experts expect the court would rule against the administration, given its Hamdan decision last summer, in which it sought to rein in executive authority.   

The origins of the NSA surveillance program stretch back five years to the immediate aftermath of 9/11. The White House claims Congress granted it widespread powers to execute the war on terror after passing the joint resolution called the Authorization for the Use of Military Force (PDF). Gonzales has argued in the past that FISA is a moldy institution that “does not anticipate a post-September 11 situation.” But like the war in Iraq and the treatment of terrorist detainees at Guantanamo Bay, Congress has repeatedly fought for—and now appears to have won—greater oversight to rein in executive authority.

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