Wiretap Debate Should Go To Courts

CBS' Andrew Cohen Advises White House To Prove Case In Court

(CBS) 
Let's back up a second. The president signs and implements a constitutionally-suspect Executive Order that says the NSA may eavesdrop on certain international communications within the United States without going through the procedures set forth in the Foreign Surveillance Intelligence Act. Then the President and his tribunes take great pains to declare that proper procedures are in place within the executive branch (read: the NSA) to ensure that the domestic spying program is properly limited.

This, the president says, is why he feels comfortable bypassing Congress and the specially-designed FISA courts. Then, within only a few days, we learn that the procedures that were supposed to protect us from NSA excesses are simply not good enough. Can you better understand why so many lawmakers, lawyers and judges are freaking out?

While the White House is trying to explain all of this it also might want to try to explain why the president, in Buffalo in April 2004 during a speech about the Patriot Act, told an audience this: "… there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order.

Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
The president said this several years after he signed that Executive Order abandoning the requirement of a court order to "chase down terrorists." I don't expect the president to voluntarily share in public our strategies for gathering intelligence.

But, I don't expect him to affirmatively lie, either.

No, this domestic eavesdropping story isn't dying. It's growing stronger and more pronounced each day. U.S. District Judge James Robertson, a Clinton-appointee who was nominated to serve on the FISA court by then-Chief Justice William Rehnquist, resigned from that special court Monday. The Washington Post reports that he did so to "protest" the president's domestic spying program and its negative impact on the work of the FISA court.

And Judge Robertson took his action before the Times' published its story about purely domestic spying. Even late-in-the-week stories about previous domestic spying orders by President Clinton and others before him serve only to highlight the important legal distinctions between the type of domestic surveillance presidents have tried to achieve before and what President Bush is trying to do now.

Another sign that this story isn't going away anytime soon is that Congress is starting to rev up over this issue. Instead of informing some members of Congress after the fact about its domestic surveillance program, the White House could have gone to the Republican-dominated Hill in the wake of the terror attacks of 2001 and sought an expansion of the FISA to include domestic eavesdropping. I mean, why not?

Congress passed the USA Patriot Act in the fall of 2001 in a matter of hours without really knowing precisely what was in it or even pretending to deliberate over the most important single piece of law enforcement legislation in a generation. Having been blown off by the White House, it's no shock to me that Congress now wants its pound of flesh.