spying on americans and foreign intelligence surveillance act and court and judge harold a baker

In the previous essay I laid out the purpose and scope of the FISA, ("The Foreign Intelligence Surveillance Act") passed by Congress and signed by President Carter in 1978. This essay reflects further on the FISA and then moves to consideration of the testimony of several FISC judges on Tuesday before the Senate Judiciary Committee. My ultimate conclusion is that President Bush and the Administration violated American law in authorizing secret wiretaps/intercepts of communications by American citizens without going through the process required by FISA.

The "Balance" of the Statute

Crucial to understanding the scope of FISA is to perceive the respect for the balance of power which runs through it. Even in the wake of unquestionably overreaching surveillance of American citizens by President Nixon and J. Edgar Hoover, the Congress wanted to retain the right of the Adminstration, for the purposes of national security, to surveil people. The law permits surveillance of foreign powers or agents of foreign powers (a US citizen could be the latter). Thus, the Administration's need to conduct covert intelligence work was reaffirmed. But experienced federal judges would be the ones who would allow this covert intelligence work to go on. One of the things of which this country should be justifiably proud is that the federal judiciary is not simply a group of political hacks who kowtow to their political party or to the President who appointed them. Independence is a treasured trait of this body, and especially of the Foreign Intelligence Surveillance Court.

For example, Judge Harold A. Baker, who testified on Tuesday, has had long experience in intelligence matters going back more than 30 years. He was one of the Senior Counsel for the Rockefeller Commission, appointed by President Ford in 1975, to look into the various ways that the Central Intelligence Agency might be spying on American citizens. This blue ribbon task force was chaired by then-Vice President Nelson Rockefeller, and included on it such men as John T. Connor, C. Douglas Dillon, Erwin N. Griswold (former Dean of Harvard Law School and Solicitor General under President Ford), Lane Kirkland, Ronald Reagan, and others. That is, Judge Baker has spent large portions of his professional career understanding the role of intelligence gathering in our democracy. He is not a pushover, and he did not strike me, when I ate lunch with him two years ago, as a man who simply would bow to administration wishes because of party affiliation.

The reason why a balance of power was carefully struck in the drafting of FISA is because the liberties of the American people were at stake. We are people who not only treasure our privacy and freedom of expression but will insist upon it. We are not used to nor do we support intrusive searches of our person or homes without probable cause. When searches are permitted, they are done in situations carved out from the general principle (like searches of luggage at airports), where there is a societal consensus that the liberty should be curtailed for the greater good of safety. The liberties of the American people are so assumed to be sacrosanct in the statute that any secrecy "deviation" must be attended with and hedged by safeguards. I spoke of the safeguard of minimization in the previous essay. The statute also provides for annual reports (in April) by the Attorney General to the Administrative Office of the United States Court and to Congress setting forth "the total number of applications made for orders and extensions of orders approving electronic surveillance" and "the total number of such orders and extensions either granted, modified, or denied" (18 USC sec. 1807(a)-(b)). In addition, full disclosure of the details of any surveillance program had to be submitted to congressional intelligence committee heads each year.

In a word, surveillance with safeguards is the spirit of the Act.

The Judges Speak

When the judges appeared on Tuesday before the Senate Judiciary Committee, they did so in the context of some proposals before the committee regarding the Bush Administration's National Security Agency's eavesdropping program. The leading one would put the NSA's program under the auspices of the FISC, a proposal which seemed to please all the judges. Senator DeWine's (R-OH) administration-friendly proposal which would allow surveillance with retroactive approval by the FISC would seemingly violate the spirit of the FISA. No one, as far as the New York Times story reported, supported the NSA program in its present form.

And, there is good reason for this. Though the Bush Administration has doggedly maintained that its program is legal, it really is not. When the program's existence was leaked in November 2005, President Bush was clearly upset, and he looked as if he was a child who had been caught taking cookies 30 minutes before dinner. He knew that the program skirted the edges of the law, despite his protestations that he had legal authority (most likely from the Office of Legal Counsel in the Department of Justice) for his surveillance program. In fact, the lawyers in that office are not simply a "neutral" group of attorneys whose job it is to "advise" the Administration on the legality of its actions. Their more prominent role is to provide legal "cover" for an Adminstration that wants to do what it wants, regardless of the legality of it. That is my conclusion upon watching the Bush Adminsitration(s) for five+ years. It has exploited the national crisis arising out of 9/11 in order to engage in a series of illegal activities (another of which is the invasion of Iraq) which were justified post-hoc by the claim of the "inherent power of the Presidency" or, even less likely, by the so-called Congressional mandate to use all necessary power to respond to the attacks on 9/11.

Conclusion

The judges wisely skirted the issue of whether the President's domestic spying program was illegal, but others need not be so circumspect, especially when the President's actions (desperate attempt to explain by appealing to inherent powers) and the statute's clarity and purpose speak so clearly against him.

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