The 1978 Foreign Intelligence Surveillance Act created a secret court that allows the National Security Agency to eavesdrop on Americans, but only with approval of a judge. In an emergency, the NSA can obtain a warrant after the fact, anytime within 72 hours.
By way of understatement, let us say that the court exercises a permissive standard. Between 1979 and 2002, the FISA court approved 15,264 warrants and rejected four.
Then comes President Bush, brushing aside due process after the Sept. 11, 2001, attacks with an executive order that allowed the NSA to conduct domestic surveillance without FISA oversight.
Already one judge has resigned from the FISA court in protest, and the chairman of the Senate Judiciary Committee has called hearings to determine if the president has the authority to ignore the restrictions on domestic spying.
The American public deserves a careful review of the president’s NSA program. We favor a comprehensive investigation of NSA activities and the use of this extraordinary presidential authority.
Eavesdropping on suspicious phone conversations and e-mails is a necessary part of the war on terror, and Attorney General Alberto Gonzales is arguing that the government can’t take the time to obtain court permission. That’s ridiculous. Congress provided the FISA mechanism to handle such cases, and we have to be distrustful when a president makes a secret move to ignore the clear intent of law.
President Bush contends he has proper authority by virtue of congressional anti-terrorism action taken after the 2001 attacks. Many members of Congress dispute that.
The first major challenge to the eavesdropping program was filed Tuesday in New York by lawyers from the Center for Constitutional Rights who represent terror suspects. In Detroit, a suit also was filed by the American Civil Liberties Union.
Both call for an end to the domestic eavesdropping program and seek to find out if lawyers, journalists, political activists, academics and others were spied upon.
Russell Tice, an NSA veteran who worked in what he called “special access programs” at the agency, apparently acted as a whistleblower to bring the warrantless surveillance to public attention. He believes abuses have occurred, and who can doubt it – why else create a hornet’s nest by bypassing the 15,264-to-4 FISA court?
Under the U.S. Constitution, no one is above the law. The president should have asked Congress for expanded authority or acted within the letter of current law. We urge Congress to conduct a careful review.
