Wiretap Debate Should Go To Courts

GENERIC: Wiretap, Wiretapping, White House, America, USA, spying, spy
Attorney Andrew Cohen analyzes legal issues for CBS News and and in this commentary, advises President Bush and the White House to prove the legitimacy of their warrant-less wiretap operation in federal court.

Already the "I" word is being used in Washington to describe one possible down-the-line outcome from the revelation that President Bush for years has authorized warrant-less domestic surveillance of U.S. citizens without Congressional approval or clear constitutional authority. Former White House counsel John Dean, who knows a little something about impeachment from his Watergate days, was throwing around the word earlier this week when he said he believed Mr. Bush was the first president "to admit to an impeachable offense."

I think that's a bit much a bit early given what we now know about the formerly secret program, especially since the president's party controls both houses of Congress where any impeachment process would begin and end. But this story has not gotten better for the White House since it broke about a week ago. In fact, it has gotten markedly worse. It is astonishing, really, how just in the past few days we have learned that many of the direst predictions about the effects of the legally-dubious program have come true.

First, we were told the program only targeted calls that had some international connection. This was supposed to give us some solace about the lack of legislative or judicial oversight for the secret spy program because the express limitation indicated that the eavesdropping efforts would be targeting domestic calls to and from Tora Bora, for example, and not calls from Toledo to Tucson. Even with this limitation the president's directive is constitutionally suspect. But, politically the "international" focus on warrant-less eavesdropping at least allowed White House operatives to say with straight faces that this wasn't some willy-nilly, spy-on-your-neighbor program.

Next, we learned from Tuesday's New York Times that the Federal Bureau of Investigation, in the name of conducting its war on terror, has "conducted numerous surveillance and intelligence-gathering operations that involved, at least indirectly, groups active in causes as diverse as the environment, animal cruelty and poverty relief." The FBI isn't the NSA, of course, but the story makes you wonder. If the FBI in the name of fighting terrorism could end up eavesdropping on the Vegan Community project (as the Times reported) why wouldn't the NSA, in the name of fighting terrorism, end up eavesdropping on, say, the ACLU, especially if it didn't have to get a warrant from a judge to do so?

And, sure enough, next came word, again from the Times, that the NSA has been unable to limit its surveillance to communications that have some international context -- purely domestic eavesdropping has occurred as well without a warrant. According to the paper's report, "technical glitches" at the NSA caused its computers to believe that targets of electronic eavesdropping were outside of the United States when in fact they were not. So that call from Toledo to Tucson that wasn't supposed to be monitored by the feds without a warrant may have been monitored after all. And so much for the we're-not-spying-on-our-neighbors argument.