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A Spying Policy Still Without Warrant

  • Aziz Huq
Published: January 22, 2007

At first it was hailed as a victory for civil liberties. But last week’s announcement that warrantless domestic surveillance by the National Security Agency has come to an end means less than it first appears.

Until now, the NSA has been engaged in electronic spying on Americans’ communications without warrants. On Wednesday, Attorney General Alberto Gonzalez announced that all such warrantless surveillance “will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court,” or FISA court.

Hardly a respite from the wars around the separation of powers, it is better seen as a tactical redeployment by the administration. By momentarily retreating, the administration reveals the continuing breadth of its reckless ambition.  Indeed, expect to see new claims of unchecked executive power from your neighborhood Department of Justice soon!

Because the work of the FISA court is secret, and only the government may appear and be heard, it’s impossible to know exactly what kind of judicial approval the government has secured. In a briefing on the new development, a Justice Department attorney said that a warrant did not approve the whole program, but rather took advantage of unnamed ‘developments in the law.’ The result is a ‘hybrid’ of individual and program-wide warrants.

(The best theory circulating for what precisely this means, suggested by George Washington University law professor Orin Kerr, rests on a March 2006 Supreme Court case. That decision approved ‘anticipatory warrants’ when law enforcement made a controlled delivery of child pornography to a suspect’s house. It may be that the Justice Department has prepared judicially approved warrants that list of a set of trigger facts that allow the warrant’s use. The large differences between the March 2006 case and the NSA situation, however, raise significant legal questions that ought properly to be aired).

Yet Gonzales’ statement comes at a troubling juncture, only two weeks before the Sixth Circuit Court of Appeals was to hear argument in a challenge to the warrantless surveillance. The government seems poised to argue that its volte-face renders that case moot.

As Adam Litpak observed in an insightful front-page New York Times story, the Administration’s decision is but the most recent instance of a troubling trend: The government invokes an extreme position on executive power to underwrite broad coercive or surveillance powers, but then ducks when it looks like those legal claims may be subject to any judicial scrutiny. This happened in both cases of citizen enemy combatants- Jose Padilla and Yaser Hamdi. At the moment that a judicial hearing appeared likely, the government pulled the plug on the litigation.

Moreover, it seems that the Justice Department was secretly negotiating a deal with the FISA court, even as it was arguing to Congress and the public that there was no alternative to warrantless wiretapping. By securing a compromise that falls within the judiciary’s bailiwick now, the administration is in effect conceding that there was never a need to flout recklessly Congress’s will as expressed in the 1978 FISA law.

That is, the administration is conceding that when it said it was necessary to step outside the law for the sake of national security, its statements were incorrect—arguably knowingly so.

Last week’s admission also should give pause to those who assume that vigorous counter-terrorism work cannot be conducted in accord with the law and with American values. Some pundits, such as Judge Richard Posner had argued that FISA simply could not accommodate the security needs of a post-9/11 world. We can reserve judgment on whether the Administration is still going too far and still conclude that Posner must be wrong: Whether or not the program announced by Attorney General Gonzales exceeds the letter or the spirit of FISA, it is clear that even the Bush administration thinks it can conduct this counter-terrorism operations within the law.

The same is true of interrogation tactics. In the run-up to the Military Commission Act’s passage in September 2006, the argument was commonly heard that the CIA and its coordinate agencies needed flexibility to use coercive interrogation tactics. Last month, however, the National Defense Intelligence College (a government body of the great and good when it comes to intelligence matters) issued a report on the efficacy of coercive interrogation that squarely refutes this claim.

This 374-page document exhaustively details the (thankfully limited) pool of empirical data on coercive interrogation tactics. Its most immediately relevant insight is found on page 35: ‘Although pain is commonly assumed to facilitate compliance, there is no available scientific or systematic research to suggest that coercion can, will, or has provided accurate, useful information from otherwise uncooperative sources.’

Thus, the predicate assumption of the administration’s interrogation policy ‘that pain and torture work’ is simply unproven (and may be the opposite of the truth). Like the NSA surveillance, it has never been real intelligence needs that have driven the metastasis of torture.

Congress should also draw a further cautionary lesson from this development: It cannot assume the executive branch will be candid and uncensored in its disclosures. For it seems Congress was not informed of the ‘considerable time and work’ and negotiations going into getting the FISA court’s agreement, which, according to a Justice Department attorney, took a ‘long time’ to secure.

Yet the executive has been busy conveying precisely the opposite impression. In his post-election Rose Garden speech on lame duck priorities, President Bush highlighted legislative authorization of warrantless wiretapping as a must-do. Did Bush say this at the same time that attorneys in the Justice Department were busy negotiating a compromise that purports to allow the program to continue under existing law? Why didn’t the President mention these negotiations? Because it might have hinted that there was no reason to break the law in the first place?

Whatever the reasons, this double game counsels for skepticism when the executive makes statements to either Congress or the people about the ‘necessity’ of rights-infringing measures.

So the troubling issues raised by executive overreaching are not going away any time soon. On the contrary, last week’s backing-down hints at quite how unlikely it is that the Bush administration will renounce its theory of executive power: The White House prefers submitting its domestic spying to judicial scrutiny to risking its treasured vision of untrammeled powers. As Fritz Schwarz and I explain in a forthcoming book, this theory of executive power has been zealously prosecuted by figures in the administration since the late 1970s. No mere federal court of appeals is going to be allowed to dent it now.

And issues of executive power will loom even larger over the next two years as Congress struggles to secure some purchase on the many-tentacled morass of national security policy. Quite apart from the question whether Congress can reign in the Iraq fiasco, there will be repeated questions in the new Congress about executive privilege and about the scope of Congress’s power to regulate counter-terrorism activities.

The executive’s repeated efforts to shield its reckless and unwarranted theory of presidential power from judicial scrutiny mean that Congress, and the people, must be more than diligent in uncovering the unacceptable and dangerous theories on which warrantless wiretapping and like policies are based.

Aziz Huq directs the Liberty and National Security Project at the Brennan Center for Justice. He is co-author of Unchecked and Unbalanced: Presidential Power in Times of Terror (New Press, 2007), and recipient of a 2006 Carnegie Scholars Fellowship.