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Spy vs. Spy: the Senate Judiciary Committee Argues the Legality of Listening

Are you willing to trade some privacy for security? Do you think the president should have the authority to watch and listen to U.S. communications during a time of war? What does defense consist of now that war is so different, so variable and abstract?

War zones no longer have marked fronts, so intelligence is even more essential to security. But security can also mean refuge or sanctuary from an overpowering government. The framers of the constitution sought to protect their fledgling nation from too much government prying, or "unreasonable search and seizure." The question is whether warrantless wiretaps fit into that category and if the rules should be refined to suit the age of terrorism.

Hearing both sides

On February 6, 2006, the Senate Judiciary held a hearing to determine if the Bush administration’s domestic surveillance program is legal and/or necessary to national security.

Both Democrats and Republicans are concerned about the constitutionality of the program, particularly Committee Chairman Senator Arlen Specter (R- Pennsylvania). Specter, the Senate’s most celebrated constitutional scholar, doubts that the program is legal, saying that the administration’s legal rational is both "strained and unrealistic."

But others on the committee, including Republicans Orrin Hatch of Utah and Jon Kyl of Arizona, believe President Bush had both the grounds and legal power to authorize the program.

What are the arguments?

Many believe that Bush’s wiretapping program violates the 1978 Foreign Intelligence Surveillance Act (FISA), which was created in the wake of surveillance abuses during the cold war and Vietnam War. The law requires the National Security Agency and the Federal Bureau of Investigation to get a warrant from a special court before placing an electronic wiretap.

The proceedings of this court, called a FISA court, are not available to the public for security reasons. Although the court rarely denies a warrant, Congress passed the law to ensure that a second branch of government was there to check executive power and prevent wiretapping abuses.

The Attorney General for the Bush administration, Alberto Gonzales, has argued that this review process is cumbersome and can take valuable time essential to "fighting a stateless, faceless enemy."

As Gonzales points out, the contemporary qualities of war are a consideration. Since FISA passed, the threat of war has changed considerably. Possible enemies have gone from over there to over here, battle is sporadic and unpredictable, and victims are usually civilians instead of soldiers. Danger can no longer be attributed to a foreign government or nation, but rather a stateless and mobile group that refuses compromise.

In defending the Bush administration surveillance program to the Judiciary Committee, Gonzales explained that "the enemy is listening" and counter-surveillance is an "early warning system."

However, many committee members contended that fear was not a reason to avoid the law. Gonzales argued that the administration was not so much avoiding the 1978 law as following a different one: the 2001 congressional resolution that gave President Bush the authority "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States."

Defenders of the Bush administration argue that the 2001 congressional directive gave President Bush the power to do as he saw fit in order to fight Al Qaeda, including issuing wiretaps without a warrant.

Two conflicting laws

On the surface, it appears that the two laws contradict. So what is the legal precedent in a situation like this? Typically, courts rule that the more specific law governs. In this case, that would mean the 1978 FISA law requiring warrants.

Critics also say that if Congress had meant to overrule the 1978 law, it would have said so directly in the 2001 resolution.

But some legal experts say that the 2001 resolution could possibly create an exception if "necessary and appropriate force" includes surveillance of the enemy. The Bush administration argues that surveillance is a natural extension of defense during wartime, but critics point out that the Supreme Court recently ruled that vague and sweeping federal laws do not necessarily negate smaller, more specific ones.

During the hearing, the Judiciary Committee’s leading Democrat, Patrick Leahy of Vermont, explained that the 2001 directive was not about wiretaps. He argued that the Senate knows a wiretap statute when it sees one, and the 2001 law was not recognized as such.

Historical perspective

Leahy further reminded the committee that the 1978 law was a response to decades of eavesdropping by the executive branch, including the surveillance of Dr. Martin Luther King Jr. and other political adversaries.

Critics argue that Bush should have proposed new legislation when he found the old laws to be cumbersome. That way, Congress could update the laws while maintaining safeguards from abuse.

During the hearing, Gonzales responded that new legislation (which usually goes through many negotiations before becoming law) probably would have compromised the program.

What happens now?

There will likely to be more hearings in the future, so the outcome of the debate is not certain. Congress could invalidate Bush’s executive order -- a move that would bring the matter to the courts -- or create new laws itself that the President has to follow.

What do you think?

Should wiretapping without warrants be allowed? Do you think the 2001 resolution gave Bush the power to authorize surveillance? What needs to happen to clarify the rules?

Your input matters

Your representatives in Congress DO care what you think. Especially now -- 2006 is an election year and many representatives will be looking to reconnect with their constituents. Let your congressmen and women know what you think! Give your senators a piece of your mind! To find your reps, click here.

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Update Posted on: 2/9/2006