SENATOR ARLEN SPECTER and other members of the Senate Judiciary Committee have informed Attorney General Alberto Gonzales that when he appears before them today to defend NSA wiretaps, they will have some pointed questions for him. Indeed, the questions will need to be sharp if the Senators hope to penetrate the obfuscation that has attended this controversy.
Critics of the president’s program fondly quote from a paragraph of the Foreign Intelligence Surveillance Act, asserting that FISA (and related provisions of the criminal code), “shall be the exclusive means by which electronic surveillance . . . may be conducted” (emphasis added). Conveniently, they fail to note the clause that opens that very same paragraph: “Nothing contained [in FISA or the criminal law] shall be deemed to affect acquisition by United States Government of foreign intelligence information from international or foreign communications . . . “(emphasis added).
When it enacted FISA in 1978, Congress tried to draw a distinction, within the field of “foreign intelligence,” between international/foreign communications and domestic communications. For domestic communications–over which FISA asserts “exclusive” authority–before the government can conduct surveillance, it must show probable cause before a FISA judge that the person in question is an agent of a foreign power. International communications, it left essentially untouched. Congress refrained from intruding the complex, privacy protective apparatus of FISA into the realm of international communications–and it was wise as well as constitutionally obliged–to do so.
Throughout our constitutional history, presidents have asserted inherent executive authority to spy on the country’s adversaries, updating that claim, as logic compels, with every advance in technology: Lincoln with telegraphs, Wilson with the telephones, Roosevelt with radios. Every federal court which has addressed the issue, including four Courts of Appeals and most recently the FISA Court of Review, has concluded that the president does have “inherent authority to conduct warrantless searches to obtain foreign intelligence information.”
Notably, the NSA program, as described by the president, directed by General Michael Hayden, and defended by Department of Justice, involves only the “interception of international communications of people with known links to al Qaeda and related terrorist organizations” into or out of the United States.
Obliquely, the critics acknowledge the lawfulness of such a program by attacking a strawman, an alleged program of “domestic” surveillance. Thus, in a widely publicized letter to Congress, published in the New York Review of Books, 15 eminent constitutional scholars and former government officials, attack the constitutionality of the NSA’s program of “domestic surveillance”–a term that appears 22 times in various iterations, while “international communications” appears nowhere. The ACLU does only slightly better; at the outset of its critique of December 29 (which suggested a constitutional equivalence between NSA’s surveillance of al Qaeda and Nixon’s surveillance of George McGovern), it notes the president’s authorization of warrantless surveillance of “international (and some domestic)” communications, but then unleashes its attack on this alleged program of domestic spying.
The surveillance the Bush administration describes, FISA does not prohibit–with this qualification: the intercepts would have to occur outside the United States. Although FISA attempted a line between international and domestic communication, obviously the realms overlap. What if a Soviet official in Moscow called a person in the United States, not himself identified as a foreign agent, or vice versa?
FISA splits the difference, depending on where the “acquisition” occurred. If we tapped a call in the United States, we would have to do so under the FISA procedures; if we tapped outside the United States, we would not. In an era of literal “wire communication” (a term still used in FISA law), when only six cables crossed the Atlantic Ocean bearing less than 6,000 channels, an era of nation-state actors, when intelligence consisted of long-term tracking of known foreign agents, perhaps this distinction made some sense. Today, it amounts to this: If a call from Osama bin Laden to a future Mohammed Atta is intercepted by a satellite poised over the Atlantic, it’s okay, but if that same call is picked up by a satellite dish in Sugar Grove, West Virginia, or through a junction box in Reston, Virginia, it’s illegal. And if for technical reasons only a U.S. based interception is possible? Tough.
SUCH LEGALISM seems strained, but such was the law. Until September 11, that is–or more clearly, September 18. On that date, Congress authorized the president “to use all necessary and appropriate force” “in order to prevent future attacks of international terrorism.” In the recent Hamdi decision the Supreme Court held that this joint resolution authorized the president to detain enemy combatants, even if citizens of the United States, as “a fundamental and accepted incident of waging war.” For some, September 11 changed everything. For the president’s critics, September 18 changed nothing.
Perhaps one of the more imaginative of the president’s constitutional critics–they are many–could come up with an argument that Congress, having authorized the use of force, could constrain the president with such nice distinctions as that between satellites and satellite dishes, between optical cables in the Atlantic and junction boxes in Reston–though each carries the same communication. But at a minimum, Congress surely must provide a clear statement that such was its intent.
So the hearings do present an opportunity for a pointed question. Is this delicate distinction what Senator Specter and his colleagues intended when they authorized the use of “all necessary and appropriate force” “to prevent any future acts of international terrorism against the United States?”
Stanley C. Brubaker is a professor of political science at Colgate University.
