Alberto Gonzales's spin.

by Jeffrey Rosen | February 27, 2006

After Attorney General Alberto Gonzales's inept performance before the Senate Judiciary Committee last week, Republicans as well as Democrats expressed strong skepticism about the legality of the Bush administration's domestic wiretapping program. The growing bipartisan consensus about the program's illegality is a relief. The administration's legal arguments were transparently unconvincing from the moment The New York Times revealed the program's existence, and, as fair-minded Republicans are recognizing in growing numbers, the arguments are also dangerous in suggesting that the president has the constitutional authority to ignore or distort legal restrictions with which he disagrees. Now that congressional Republicans are protesting President Bush's brazen usurpation of their constitutional prerogatives, the question remains: What do they intend to do about it? The challenge isn't figuring out the right policy; since September 11, it has been obvious that there are a series of compromises that Congress and the president might strike to ensure broad surveillance of potential terrorists while protecting innocent citizens. The challenge is one of political will: In light of the president's arrogant unilateralism, does Congress have the nerve to stand up for itself? Since the domestic surveillance program was exposed, the administration has repeatedly insisted that Congress implicitly endorsed the program on September 14, 2001, when it authorized the president to use force against the perpetrators of the September 11 attacks. But, as Senator Russell Feingold objected-- with justifiable indignation--this is a "fantasy version" of the far more limited powers that Congress actually authorized. And indeed, at the Gonzales hearings, most of the Republicans on the Judiciary Committee-- including Senators Lindsey Graham, Mike DeWine, Sam Brownback, and Arlen Specter--explicitly repudiated this fantasy. Several senators noted that the Bush administration had approached Tom Daschle, then the majority leader, shortly before the resolution came to the floor and asked that the words "inside the United States" be added to the authorization to use force. Although, given the circumstances, he was inclined to grant most of the White House's requests, Daschle refused, and the request was withdrawn. Recognizing that Congress was unlikely to authorize electronic surveillance, Gonzales later commented, "That was not something we could likely get." As Specter asked him with incredulity last week, "If this is something you could not likely get, then how can you say Congress intended to give you this authority?" Gonzales had no convincing answer, except to claim repeatedly that the Supreme Court, in the case of Louisiana-born Taliban fighter Yasir Esam Hamdi, had ruled that the use-of-force resolution authorized the president to detain an American citizen seized on the battlefield in Afghanistan. "And detention," he said, "is far more intrusive than electronic surveillance." This claim entirely misses the point: The Supreme Court's reasoning suggested that suspects seized on a foreign battlefield have fewer rights than those seized at home, meaning the Hamdi ruling cannot be used as justification for domestic surveillance. Indeed, in Hamdi, Antonin Scalia and John Paul Stevens insisted that the 2001 use-of-force resolution does not authorize the detention of a citizen under any circumstances. And, in the case of Jose Padilla, once alleged to be plotting a dirty bomb attack, four justices noted that the resolution does not authorize the detention of an American citizen seized in the United States. Gonzales's argument is dangerous as well as unconvincing, since it has no obvious limitations. Would the use-of-force resolution authorize the president to open mail or to conduct "black bag" operations, breaking into the homes of citizens without warrants, and conducting secret searches, asked Senator Patrick Leahy? Gonzales, typically, said he would not discuss these "hypotheticals." (In his confirmation hearing, Gonzales also called domestic wiretapping a hypothetical scenario, even though he knew that it was all too real.) But, in its official defense of the domestic spying program on January 19, the Department of Justice was not so coy. If courts interpreted the Foreign Intelligence Surveillance Act (fisa) to prevent the president from doing whatever he thought necessary to protect the nation during a congressionally authorized war, the Justice Department declared, the law itself would be unconstitutional. In short, Justice's answer to the black bag question is "yes." Of course, if you follow that reasoning, as Graham pointed out, there is no reason the administration couldn't, for example, ignore or break the federal ban on torture if the president decided that it impeded the war effort. "Taken to its logical conclusion," Graham said, "it concerns me that [the administration's argument about its inherent authority] could basically neuter the Congress and weaken the courts." After suggesting that the administration had the power to stretch laws to mean the opposite of what Congress intends, Gonzales went on to suggest fisa didn't apply in this case, because it had been superseded by the use-of-force resolution. Even so, there was no meaningful difference, he insisted, between Bush's secret spying and the surveillance explicitly allowed by fisa, which requires probable cause to believe that one of the parties to a wiretapped conversation is a suspected spy or terrorist. The distinction between fisa's "probable cause" and the administration's "reasonable grounds" standard for wiretapping, Gonzales said, was semantic: "It's the same standard," he insisted lamely. In fact, it is not the same standard: Probable cause is clearly more demanding. But the real difference is that fisa requires administration officials to seek a judicial warrant for the secret surveillance, while the administration insists on the need to supervise itself, without judicial oversight. The Gonzales hearing made clear, however, that the administration is determined to resist any attempts by Congress to regulate surveillance, even when Congress proposes to codify the administration's own proposals. In 2002, for example, when DeWine proposed to lower the standard necessary to obtain surveillance warrants on non-U.S. citizens connected to terrorism from "probable cause" to "reasonable suspicion," James A. Baker, the Justice Department's counsel for intelligence policy, testified that the existing standard was working well and the lower one would likely be unconstitutional. (At the same time, the administration was secretly applying the lower standard on its own initiative.) Last week, DeWine asked Gonzales whether the administration would now support a federal law that allowed electronic surveillance of all international communications where one party is affiliated with a terrorist group, subject to oversight by the House and Senate intelligence committees. Gonzales demurred once again, refusing to say whether he thought Congress even had the power to ensure the president was following his own stated program. Gonzales's contortions are not only dangerous, they're unnecessary, since it's easy to imagine a sensible way of protecting privacy while also being tough on terrorism. Since September 11, this magazine has argued that Congress could guarantee balance by striking the following bargain with the White House: The president gets expanded power to surveil people connected to terrorism suspects, but only if there is outside oversight and only if evidence collected during the surveillance can't be used to prosecute them for lower-level crimes that have nothing to do with terrorism (see "Security Check," December 16, 2002). The administration, however, responds that it must be able to prosecute potentially dangerous people for less serious crimes to prevent them from committing acts of terrorism (the equivalent of prosecuting Al Capone for tax evasion). Congress could answer this objection by setting up the following surveillance system: When the government suspects someone of being a spy or a terrorist, it can prosecute anyone for any crime, serious or trivial. But, until some degree of individualized suspicion develops, evidence uncovered in intelligence searches cannot be shared with law enforcement officials to prosecute crimes unrelated to terrorism. Judicial and congressional oversight would also be put in place to ensure that the executive kept its side of the bargain. In other words, warrants would be required, but the fisa court would grant them as long as one party to the conversation was a suspected terrorist, even if both parties were in the United States. The time period for the administration to conduct warrantless searches could be extended in emergencies, as long as the administration sought approval from the fisa court after the fact. And Congress would conduct periodic secret hearings to ensure that the new authorities were, in fact, focused on terrorists. Is it realistic to expect Congress to strike a bargain like this with the White House--codifying the broad surveillance authority Bush has demanded in exchange for restrictions on information-sharing, combined with judicial and congressional oversight? The fact that Congress agreed to reauthorize the Patriot Act without meaningful modifications the same week that it held hearings on domestic surveillance does not inspire confidence. Since the Patriot Act was passed soon after September 11, almost all of the thoughtful civil libertarian objections have focused on a single provision, Section 215, which regulates the secret collection of physical evidence under fisa. Before the Patriot Act, both electronic surveillance and searches for physical evidence could only be conducted in secret and without warrants if there was probable cause to believe that the target was a suspected spy or terrorist. Under Section 215, the standard was lowered: Secret searches can take place in any case where the government says the evidence is relevant to a terrorism investigation. Civil libertarians have objected to Section 215 for the same reason they object to the Bush administration's eavesdropping program: namely that the government could, in theory, target its critics, certify that they had evidence relevant to a terrorism investigation, go on a broad secret fishing expedition, and then prosecute them for crimes that had nothing to do with terrorism. Last July, the Senate unanimously passed an amendment to Section 215 that would have ensured that the government couldn't obtain the sensitive personal records of Americans who have no connection to terrorist spies or their activities. Unfortunately, this reform was abandoned in the Patriot Act compromise that emerged last week. The fact that the House and Senate, in the end, were unable to agree on even this one eminently reasonable reform makes it hard to be optimistic that Congress will insist on the same protections when it comes to regulating eavesdropping and real-time electronic surveillance. Perhaps, however, Republican senators will remain so outraged about the administration's usurpation of their prerogatives that they will finally stand up for themselves. Specter, for example, has pointedly challenged the administration's unconvincing legal arguments. Before he will consider new legislation, Specter wants the fisa court to review the Bush program and rule on constitutionality. If he thinks that will shore up political support to resist the president's unilateralism, so be it. But, for more than four years since September 11, Congress has acquiesced in the steady erosion of its power. If Gonzales's sorry performance doesn't spur it to action, nothing will.

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