The White House has apparently reversed course and is providing conditions under which it would allow a secret intelligence court to review whether the Bush administration has the authority to eavesdrop on Americans without warrants.
It’s part of an agreement with Senate Judiciary Chairman Arlen Specter, R-Pa., who has been skeptical about the legality of warrantless eavesdropping by the National Security Agency.
In all likelihood, the White House change of heart – which we welcome – reflects the weakness of its position.
The 1978 Foreign Intelligence Surveillance Act stipulates a process by which warrants can be obtained for domestic eavesdropping. It doesn’t say anything about the president ignoring the court and taking the law into his own hands.
We’d like to think the FISA court would be able to withstand the administration’s pressure to rubber stamp its controversial program. But for the moment, we are skeptical.
Under the plan brokered by Specter, President Bush would sign legislation allowing the intelligence court to decide if the controversial program is constitutional. Specter acknowledged, however, that the bill doesn’t really obligate the president to submit the program to the court for review “because the president didn’t want to institutionally bind presidents in the future.”
A condition of the plan would allow the Justice Department to revise the program to make it acceptable to the court. It would also give the NSA seven days, rather than the three in the current law, to eavesdrop before requesting a warrant. And the plan would give Justice the power to consolidate 100 or so lawsuits challenging the NSA operation into one case before the FISA court.
Cathryn Hazouri, executive director of the Colorado ACLU, said the suits should be settled in other, open federal courts.
“The FISA court is not the right forum for lawsuits. It’s a secret court. Even if it were equipped to hear lawsuits, the American people wouldn’t have any information about the level of intrusion or invasion of our privacy,” Hazouri said.
Until Thursday, the president held that he has wartime authority to conduct the NSA program in the wake of the 2001 terrorist attacks. After the program came to light last year, many in Congress have expressed concern that it violates the 1978 law.
Up to now, the role of the FISA court was to approve or deny government surveillance requests. Rarely has it said no – in 2005, the court granted all 2,072 requests.
We hope that this switch by the White House reflects a decision to seek court approval for domestic eavesdropping. Congress must put the proposal under a microscope, and we look to FISA to safeguard the procedures stipulated in the 1978 law.
