Wiretap Debate Should Go To Courts

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com 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.

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.

There is only one noble path now for the president to take. He should immediately order the executive branch itself to go into federal court seeking a declaratory ruling on the constitutionality of his domestic surveillance program. If the White House is as confident about the legitimacy of the program as it claims there should be no fear that the federal courts, including the United States Supreme Court, ultimately will find that a president's war powers under the Constitution include the power to spy on his own citizens without a warrant despite the Fourth Amendment's prohibition against the practice. A ruling in favor of the White House would immediately stymie any legislative effort to limit the president's power.

And it would protect future presidents from having to fight this fight.
On the other hand, if the federal courts were to rule that the president's war powers are limited in the context of domestic surveillance there will be no need for Congressional action; no need for the racy investigations that so many people now are talking about on Capitol Hill.

If the United States Supreme Court says the president cannot order domestic eavesdropping without a warrant he will have to stop the practice and acknowledge that even in this time of terror his powers over American citizens are limited. The issue would be resolved for future presidents but still would allow Congress to fiddle around a bit with FISA to try to get the president more (and lawful) surveillance powers.

This issue may have enormous political overtones but at its core it's a legal issue -- whether or not the law allows what the president says it does. It's notable to me that the White House's tribunes on this issue, people like U.S. Attorney General Alberto Gonzalez, talk only about the "legal position" they are taking on the issue of secret domestic spying; it's a tacit acknowledgment by the very people asserting this broad presidential power that the law does not at this moment expressly recognize such a power.

I don't expect the White House to take my advice (I never do, incidentally) because even to ask for a declaratory judgment from the courts on this issue would be to acknowledge that the president's war powers can be limited by the judicial branch. And that's a position that this Administration has consistently refused to endorse.

Eighteen months ago, remember, the Supreme Court told the White House that it does not have a "blank check" to conduct its legal war on terrorism. It's time again for another showdown between the branches -- and another opportunity for some legal clarity about which constitutional rules ought to apply in this time of terror.