This Call May Be Monitored For Quality Assurance

Twice recently, I've had to admit to liberal friends that I know too little about the wire-tapping controversy to register an informed opinion. I don't want to believe scare-mongers, but nor do I give credence to the view that if Bush says it's necessary, it must necessarily be so. So here's my research.

First of all, let me distinguish between two key questions: is it legal? and is it right? The government may legally do many things that I consider wrong; it might also do something right that is illegal, which is what John McCain brilliantly said he would do if, as president, he was confronted with a situation where torturing a suspect would save thousands of lives immediately. He also said he would face the consequences of having broken the law.

The facts: in 2002 the President decided to begin wiretapping without warrant the international phone calls of citizens and residents suspected of involvement with al-Qaeda. The executive briefed the chairs and vice-chairs of both Intelligence Committees a number of times, but not the entire committee. Some, including Minority Leader Nancy Pelosi, registered concern. A New York Times article, which was delayed for a year at the administration's request, publicized the Order.

The real facts - who the NSA is monitoring and how - are still unknown. This is vital; it may include traditional wiretaps of identified individuals. It may also include automated email filtering, which scans millions of emails for keywords, etc, and then delivers suspicious ones to NSA employees. I think this latter case is more likely, but perhaps it is significantly more sophisticated than I can conceive.

I. The case for legality. I will rely on the Justice Department for this. Attorney General Gonzalez' editorial in the Wall Street Journal today outlines the government's case; his speech today to the Judiciary Committee and the Moschella Memo to Congress are detailed legal defenses. The fundamental bases are:

• The Authorization for Use of Military Force, which Congress gave the president on Sept. 18, 2001. The administration argues that it is a "fundamental incident of waging war", and looks to extend Hamdi v. Rumsfeld, which legitimated the holding of enemy combatants.
• The Foreign Intelligence Surveillance Act (FISA) is the lynchpin of any illegality claims. FISA prohibits wiretapping "except as authorized by statute", which the administration interprets as either FISA itself or another statute. They again seek to extend the interpretation of the AUMF in Hamdi.
• Precedent. In every major war since the Revolution, intercepting enemy communications, including that of American traitors, has been standard. During World War II every international telegram was monitored, a far broader measure. Some of the older precedents are moot: clearly, they were what FISA was written to address.
• Other exceptions to the Fourth Amendment. The Supreme Court has allowed that warrantless searches may be conducted in cases where the purpose is "distinguishable from ordinary general crime control"; e.g. border searches and drunk driver checkpoints.

This is not an ironclad case, but it does give a reasonable explanation. I do not think that the administration believes it is breaking the law. However, it should be forced to stop - or to seek an amendment to FISA - if the law is in fact being broken.

II. The case for illegality. As with the above, I consider the source. The opinions of centrists like Arlen Specter, who says the surveillance program is illegal, are much more weighty than, say, what DailyKos or Maureen Dowd think.

My sources are: a memorandum (.pdf) by Morton Halperin of the left-wing Center for American Progress and a helpful Wikipedia article. The case against the administration is based in the following:

• FISA required warrants. The text of FISA is here.
• FISA provides for wartime with a 15-day "grace period" following a Congressional declaration of war. Thus, it is reasonable to argue that this section (1811) implicitly prohibits expansion of surveillance power during wartime.
• The Electronics Communication Privacy Act contains the text: "The Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance...may be conducted." The full text is here. This requires that any exception be specifically allowed in FISA.
• The Fourth Amendment to the U.S. Constitition reads: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.... This is the bedrock of American law on this issue, and places the prerogative of individuals above that of the government or collective security.

The case against the administration is strong, and the folks who passed FISA in 1978 wouldn't approve of Bush or anything he does. There are a few people arguing that the spying violates the Constitution; this is malarky: before FISA, circuit courts approved such spying four times. Unless the administration can convince a court that the AUMF meets the statutory requirement, the program is illegal.

III. The case for propreity. Conspiracy-theorists say that this program is a slippery slope or the tip of the iceberg on NSA spying. Personally, I find it comforting. Bush had to issue an Executive Order to peek at the email of those suspected of ties to al-Qaeda or to initiate automated email monitoring (if that's taking place) - fantastic! I always assumed they just did that without anyone's permission. I'll sleep easier tonight knowing that the government is so constrained that this is on the frontiers of their activities.

Of course, that doesn't make the measure right, but it does bring up my main argument in favor of it: I'd rather have them doing something slightly problematic that I know about than force them underground, where the fig leaf of legality will be forgotten. So I think FISA should be modified to allow the executive to search communications "reasonably" - per the Fourth Amendment - and that the Foreign Intelligence Surveillence Court (FISC) should be given a measure of oversight. For instance, email filters should be allowed, but they must first be approved by FISC. That way, for instance, the government can search for words like "uranium" but not words like "Islam". Of course, FISC is basically a rubber-stamp; it approved all 1228 applications requested in 2002, asking for modifications to only 2 before approving. Which makes the Order all the more curious: why make a new route if the FISC is so accommodating?

IV. The case against propriety. This depends principally on unknowns. The administration is stepping into murky water if some of the practices being undertaken are beyond the pale or if the scope of the prorgram is getting out of hand. Like most Americans, however, I don't equate the civil rights of those who make common cause with America's enemies to 'normal' civil rights, nor do I equate the right to privacy with other, more basic, rights.

Concluding thoughts. The Bush Administration has probably broken the law. A lot more needs to be known before passing judgment, however. If, as Attorney General Gonzalez claims, urgency is a major factor in the need for this program and the 72-hour window (expanded from 24 in 2001) is insufficient, then the window should be lengthened, or extensions of warrantless wiretapping obtained from the FISC in the cases that do take longer. This is a procedural problem, and shouldn't trip us up. However, I doubt that is the raison d'etre of this measure. Instead, it would more naturally be initiated to account for (a) those whom the administration has a hunch about, but no proof, or (b) a desire for massive automated filters.

If it's (a), then tough luck. FISC is obviously not hard to pursuade, and the onus is on the government to provide reasonable cause to spy on an American. If it's (b), then those who say that FISA needs to be overhauled are correct, and FISA should be overhauled while the president still has friends in Congress. Of course, that doesn't change the probable illegality of what he's doing now.

Having researched this controversy to a satisfactory extent, I am not worried. While it is technically an impeachable offense (assuming a court finds that the administration broke the law), it was committed by all appearances in good faith and wrongly gathered information was not misused, as far as we know. I think the government should probably have more leeway than granted by FISA, but not as much as they naturally desire. The rule of law is the key here. I always want to have an executive that is zealous to protect Americans, but it must always do so within the bounds set by Congress. Otherwise, as is seen in so many examples, the very freedoms they set out to protect are eroded.

Note: purely domestic wiretaps are out of the question due to a pre-FISA ruling by the Supreme Court that a warrant is required in all domestic cases (Keith, 1972).