The Spying Program: Deal Or No Deal?

Lawyer Andrew Cohen analyzes legal affairs for CBS News and
The continuing saga over the legal legitimacy of the National Security Agency'sdomestic surveillance program is a story that has been underreported recently. And that's probably because for a few months anyway there seemed to be harmony between the branches over the extent to which the White House could undertake its spy program with and without Congressional oversight.

In January, the White House relentedto legal and political pressure and agreed to again go through the super-secret Foreign Intelligence Surveillance Act courts for permission to wiretap people believed to be terror suspects (or people at least believed to be talking to people believed to be terror suspects). Even though the executive branch was squirrellyabout sharing the details of its deal with the FISA Court, even though Attorney General Alberto R. Gonzales initially stonewalled, the legislators seemed mostly satisfied that at least the court would provide some sort of oversight to check the worst excesses of the program.

Now let's fast forward to Tuesday. Michael McConnell, the new director of national intelligence, told the Senate Intelligence Committee that even though the January "deal" is in place it is => not necessarily binding on the President; that Mr. Bush still retains the constitutional power and authority to circumvent the January deal and authorize warrantless spying without FISA court involvement. It wasn't just the extraordinarily broad reading of the President's power that had tongues wagging, it was the fact that McConnell delivered the news while seeking from Congress =>broader powers under the FISA law.

You don't need to be a lawyer to know that a "deal" that doesn't bind one party isn't really a "deal" at all. And you don't need to be a therapist to understand why several Committee members, especially the Democrats, seemed so frustrated listening to McConnell's spiel. On the one hand, the executive branch wants new powers and authorities from Congress. On the other hand, it says that it is not necessarily beholden to the powers it already has from the legislators. Doesn't anyone read "Getting to Yes"anymore?

The Democrats on the Committee—and elsewhere in Congress- already are angry about the way their requests for information from executive branch agencies and departments have been handled. The New York Times quoted Sen. Sheldon Whitehouse (D-R.I.) Wednesday during the hearing: "To this day, we have never been provided the presidential authorization that cleared that program to go or the attorney general. Where's the transparency as to the presidential authorizations for this closed program? That's a pretty big 'we're not going to tell you' in this new atmosphere of trust we're trying to build."

And so a story that has been largely dormant the past few months is beginning to emerge again onto the radar screen. Eventually, it seems to me, the United States Supreme Court is going to have decide whether the President truly does have the astonishingly broad constitutional wiretap powers that his lawyers claim he has. With another few hearings like the one we saw yesterday, that court fight may be closer to becoming reality than we might have thought last week.