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Monday, December 19, 2005

License To Spy

Mr. President, it is time to have checks and balances in this country.? So spoke Vermont Sen. Patrick Leahy, ranking Democrat on the Judiciary Committee, as he filibustered reauthorization of the USA PATRIOT Act?s surveillance provisions. It was The New York Times? revelation that the National Security Agency, or NSA, was eavesdropping on telephone calls and e-mails far beyond its long-standing watch on foreign entities that so provoked Sen. Leahy.

But the PATRIOT Act doesn?t address the NSA. To grapple with that agency, Congress needs a page of history and a lesson in law. For this is not the first time the NSA has been caught casting so wide a net. In 1976, a Senate inquiry into intelligence overreaching led by Sen. Frank Church exposed secret NSA spying on Americans and prompted Congress to impose new rules. But NSA?s domestic spying program today violates those rules, repeating the abuses and wasteful overreaching of the Cold War era. To respond to the most recent bout of domestic spying, Congress' first task should be to understand how and why laws were circumvented.

From the early 1960s until 1973, the Church Committee found, the NSA ?compiled a list of individuals and organizations, including 1,200 American citizens and domestic groups, whose communications were segregated,? transcribed and the disseminated within the intelligence community. Among the missives the Church Committee found in Cold War NSA files were discussions about a peace concert, an anti-war activist?s request for a speaker in New York and a newspaper correspondent?s report from Southeast Asia to his magazine in New York. The NSA also examined vast numbers of telegrams. Despite the scale and intrusiveness of these efforts, the intercepts had ?little intelligence value."? Most were personal or private in nature.

The Church Committee?s disclosures, fiercely resisted by the Ford administration and Attorney General Edward Levi, prompted significant statutory reforms. In 1978, Congress passed the Foreign Intelligence Surveillance Act, the product of two years? intense debate. Known as FISA, the act established a secretive foreign intelligence court, staffed by federal judges, to authorize intelligence-related warrants. The NSA today, however, bypassed even the FISA court, which imposes only a minimal check. But why?

The Church Committee highlighted the pivotal role of legal guidelines and opinions for sound intelligence operations. Noting that Congress hadn?t given the NSA a statutory charter, the committee argued that the NSA?s methods and goals passed without meaningful debate. Today, the NSA?s mandate is still embodied in an executive order, not a law. Moreover, the NSA?s domestic eavesdropping was authorized by secret presidential order. The president uses these secretive laws to order and implement many controversial intelligence programs, such as ?extraordinary renditions,? whereby terrorism suspects are transferred to other nations? custody for coercive interrogation and even torture.

This legal vacuum had two important consequences. First, the Church Committee found that an agency without a legal mandate easily becomes an agency operating beyond the law. The NSA, concluded Church, had simply ?not applied at all? the legal standards and procedures for electronic surveillance. Other agencies, including the FBI, simply failed to look into the legality of their actions.

Today, things are worse. Rather than ignoring the law, the Administration takes the view that the law doesn?t apply to it. According to The New York Times , the NSA?s domestic surveillance program is underwritten by analysis from the Office of Legal Counsel in the Department of Justice. OLC has concluded that constitutional rights do not count when the president deals with those he decides are ?terrorists.? This weekend, the president defended this version of executive power as necessary. But this theory of untrammeled presidential authority has the perverse effect of turning constraints on executive action?such as the law that presidents must authorize covert operations?into licenses for mischief. And the same theory, invoked by the same lawyer, justified the unreasonably narrow definition of torture that led to public outrage and Sen. John McCain?s anti-abuse amendment.

Justifying the NSA?s spying as necessary, the Bush administration points to a need to ?move quickly? in eavesdropping. But FISA already contains an exception for emergencies that allows the attorney general to authorize foreign intelligence surveillance for up to 72 hours without judicial approval. Also, it is unclear how news of the NSA?s program ?alerts our enemies,? as president argued: FISA allows the same surveillance to be conducted under the rule of law.

The second consequence of the legal vacuum that Church identified is this: Absent clear statutory guidance, an agency?s mission expands through carelessness and excessive zeal. James Bamford recounts how one NSA fishing expedition, ?Operation SHAMROCK,? was managed by one lower-level manager ?without a great deal of attention from anyone.? Simply because a low-level functionary developed a program without oversight or management, millions of private communications thus were examined by the government.

Without clear boundaries, NSA?s Cold War mission crept beyond its intelligence mandate. In 1970, it began monitoring communications at the behest of narcotics enforcement agencies. Indeed, the Bureau of Narcotics and Dangerous Drugs gave the NSA 450 names for its Watch List that year. Techniques dubious even in the intelligence context found application in the ordinary criminal context, where they were clearly unconstitutional. Recent revelations in The Washington Post about the military?s Counterintelligence Field Activity hint that today?s intelligence activities may have spilled over legitimate limits. And in a remarkable echo of the NSA?s Cold War spying, a recent bill proposed by Reps. Sensenbrenner and King would allow criminal gangs to be designated as illegal in the way terrorist organizations already are.

The words, ?Just trust us,? do not appear in the United States Constitution. Congress should thus seize the opportunity of the pending Defense Authorization Bill to demand disclosure of the NSA?s legal justifications for its domestic spying. Demanding this disclosure is only the beginning of public debate on the proper functioning of our separation of powers in the realm of national security. Intelligence policymaking benefits from public debate?when officials must justify and explain their decisions.

Aziz Huq
December 19, 2005

Aziz Huq is associate counsel in the Liberty and National Security project of the Brennan Center for Justice at NYU School of Law. He is co-writing with Fritz Schwarz a book on the separation of powers and national security to be published by the New Press in late 2006.



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