The Bush administration, in a letter last week from Attorney General Alberto Gonzales to Congress, seemed to back away from its assertion that it has the right to spy on phone conversations of anybody in the U.S. without a warrant if the conversation is with someone in a foreign country. Gonzales said the administration had come up with a secret deal to get judicial OK for its wiretapping. But civil liberties advocates expressed skepticism.
Bill Goodman, legal director for the Center for Constitutional Rights, one of the groups that filed suit against the warrantless wiretapping, said in a statement, “We won. The president backed down from an illegal program, but there is now a clear need for legislation that makes such illegal forays impossible in the future.” But until the administration’s order is made public, Goodman said, “we have no way of knowing if it meets with the constitutional requirements that a court determine whether there is enough evidence (probable cause) to justify instituting surveillance.”
The New York Times editorialized Jan. 21, “We don’t know exactly what agreement the White House made with the Foreign Intelligence Surveillance Court about eavesdropping. But there is evidence that Mr. Bush got some broad approval for a wiretapping ‘program’ rather than the individual warrants required by law. Because the court works in secret, the public may never know whether Mr. Bush really is complying with the law.” The Times called for congressional investigation of Bush’s “secret deal.”
In December 2005 it was revealed that the National Security Agency, with the connivance of some telephone companies, had intercepted millions of U.S. phone calls without legally required authorization.
The 1978 Foreign Intelligence Surveillance Act set up a special court to issue secret warrants for surveillance of possible espionage activities in the U.S. The 2001 USA Patriot Act gave the FISA court extra power in terrorism investigations. Members of the FISA court were reported to have been shocked by Bush’s assertion of wiretapping power, which bypassed even this secret court.
In August 2006, U.S. District Court Judge Anna Diggs Taylor, ruling on a suit brought by the American Civil Liberties Union, the Center for Constitutional Rights and others, declared the NSA program illegal and unconstitutional (a violation of the First and Fourth Amendments), and blocked the government from continuing it. The Bush administration appealed, and a decision is expected within weeks.
Gonzales’ apparent retreat may reflect worry that the administration’s appeal might fail. His statement was short on details. It says that “a judge” from the FISA court has issued orders “authorizing the government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member of Al Qaeda or an associated terrorist organization.”
It is not known whether this particular FISA judge is extra-friendly to the Bush administration, or exactly what the authorization covers.
When the FISA court was created, it was not given the power to deal with issues like terrorism, and investigations it authorized could not be used to build criminal cases. One of the complaints about the USA Patriot Act is that it gave the FISA court more power to authorize secret surveillance without making sure that this would not be used to persecute legitimate dissent.
Commentators say that an administration that lied about weapons of mass destruction in Iraq is capable of finding “probable cause” for just about anything, and that its wiretapping practices need a completely independent judicial review.