Why Congress Needs to Probe the NSA Domestic Surveillance Program:
The Bush Administration's Promise to Secure Prior Warrants Is a Positive Step, But Oversight is Required

By CARL TOBIAS

Monday, Jan. 29, 2007

Over a year ago, in December 2005, President Bush made the stunning revelation that, since late 2001, he had authorized the National Security Agency to conduct a program of domestic surveillance. This admission provoked immediate, vociferous criticism, including assertions that this unilateral executive action bypassed the requirements imposed by the Foreign Intelligence Surveillance Act (FISA) and substantially invaded Americans' privacy.

Nevertheless, the effort continued virtually unaltered until January 17 of this year - when the Bush Administration made the surprising announcement that the government would now comply with FISA, and, especially, with the statutory mandate that the United States secure court warrants before undertaking surveillance.

The Administration's reversal is a constructive step, although numerous particulars remain unclear. Therefore, the 110th Congress must expeditiously and comprehensively investigate the NSA domestic surveillance program to guarantee that it properly balances the critical national security and civil liberties interests that are at stake.

Proposed Congressional Responses to the NSA Domestic Surveillance Program

Soon after the media exposed, and Bush acknowledged, the NSA program's existence in December 2005, Senator Arlen Specter (R-Pa.), who was then serving as the Judiciary Committee Chair, characterized the endeavor as an "inappropriate usurpation of presidential authority." The senator then attempted to build legislative consensus about what the preferable response to the NSA effort should be.

Last summer, Senator Specter supported a bill, introduced by Senator Dianne Feinstein (D-Cal.), that would have essentially banned the program as it then functioned -- and would have required the NSA to secure judicial warrants when it wiretaps Americans. Next, Specter forged a compromise with President Bush on legislation that would have sought a ruling from the FISA Court on the program's legality.

When this approach received sharp criticism (mainly because it seemed to afford insufficient protection of civil liberties), Specter suggested yet another measure: This third approach would have required warrants to wiretap communications leaving, but not entering, the United States, and would have authorized prompt Supreme Court review of the validity of the statute enacting this third approach into law.

In the end, however, the 109th Congress adjourned on December 9, 2006, without imposing new controls on the NSA program.

Lawmakers' failure to act basically allowed the domestic surveillance initiative to proceed unchanged. Yet national security officials could hardly rest easy: The combination of legislative inaction, increasing criticism, the filing and pursuit of numerous lawsuits which challenged the program, and threats of future litigation, left officials uncertain about exactly how they should undertake surveillance.

Meanwhile, Senator Specter trenchantly admonished, "For every day that passes, there's an invasion of privacy that could be cured." As the various sides argued, and the suits moved forward, domestic surveillance still continued.

How the Administration's About-Face May Affect Ongoing Surveillance Litigation

In the litigation challenging the domestic surveillance program, results so far have been mixed - and far from final. Both plaintiffs and the government have won some district court rulings. No federal appeals court has yet ruled and, thus, the Supreme Court will not resolve the issue soon.

Now, the Administration's recent about face - indicating the government will now procure warrants for domestic surveillance - may complicate the litigation. But will it succeed? An injunction may no longer be required, but to the extent that the suits seek remedies for privacy violations and/or name as defendants private companies that collaborated with the government, the suits may continue. Nevertheless, the government will request that judges dismiss many of the pending cases.

Indeed, it has already done so with respect to litigation filed in Detroit. In August, 2006, U.S. District Judge Anna Diggs Taylor held that the NSA's domestic surveillance program violated the U.S. Constitution. The government immediately appealed her ruling to the U.S. Court of Appeals for the Sixth Circuit -- which stayed the remedies prescribed in Judge Diggs Taylor's decision, pending appeal. Oral argument is scheduled to occur this Wednesday. Last week, the government filed papers with the Sixth Circuit, arguing that January 10, 2006 orders issued by the FISA Court authorizing it to collect "international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda," fundamentally altered the litigation -- as the "essential predicate for plaintiffs' claims and request for relief no longer exists." Accordingly, the government contended that the FISA Court orders "compel the conclusion that the district court's decision must be vacated" and the suit dismissed.

Why Congressional Oversightof Domestic SurveillanceIs Crucial Now

The developments that occurred in mid-January and over the past year mean that the 110th Congress should promptly and fully scrutinize the details of the NSA program. Congress must secure the requisite material to support informed judgments about the endeavor's operational particulars. For example, lawmakers should ascertain whether the FISA Court, in fact, authorized the government to conduct blanket surveillance, or to spy on specific individuals.

On January 17, Senator Jay Rockefeller (D-W.Va.), the Intelligence Committee Chair, vowed that his panel's "review of all aspects of this program's legality and effectiveness" would continue. Attorney General Alberto Gonzales's January 18 Senate Judiciary Committee testimony also permitted senators to elicit some relevant data.

Moreover, U.S. District Judge Colleen Kollar-Kotelly, the FISA Court's presiding judge, sent Patrick Leahy (D-Vt.), the Judiciary Committee Chair, and Senator Specter a letter stating that she had "no objection to [the Court's orders] being made available" to members of Congress. However, Judge Kollar-Kotelly also observed that the Justice Department must make the final decision, as the orders included classified material. The Attorney General, in turn, suggested that he could not ensure that the government would actually release the orders.

Congress must expeditiously acquire all of the applicable data that lawmakers need to make the most informed determinations. Once Congress systematically assembles and evaluates pertinent material, it should guarantee that the program appropriately balances national security and civil liberties.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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