The Eyes Have It
Secret surveillance programs designed to thwart future terrorist attacks raise questions about how far is too far
The FBI, too, has mounted a strong defense. No investigations are opened, officials say, unless there is "specific information about a potential criminal or terrorist threat." Mere mention of groups or individuals in an FBI file, agents say, does not mean they are under investigation. "After 9/11, the big brouhaha was the failure to connect the dots," says former FBI executive Oliver "Buck" Revell, who oversaw counterterrorism investigations from 1980 to 1991. "If you want them to collect intelligence, you're going to have to let them collect intelligence."
But the mounting allegations of domestic spying have sparked widespread concern and prompted members of Congress to action, among them Arlen Specter, the Pennsylvania Republican who chairs the Senate Judiciary Committee and who will convene hearings later this month. "I want to know precisely what they did," Specter said. "How the NSA utilized their technical equipment, whose conversations they overheard, how many conversations they overheard, what they did with the material, what purported justification there was." Democrat Rep. Robert Wexler is demanding documents on the Defense Department's secret monitoring program, part of a little-known agency called the Counterintelligence Field Activity. Among the groups on CIFA's list: the Truth Project, a nonviolent, antiwar outfit in Wexler's Florida district run by, he says, "a 79-year-old grandmother."
Civil liberties watchdogs worry that, in the reaction to 9/11, security agencies are going overboard, much as they did during the 1960s and early '70s, when huge programs of illegal spying and dirty tricks led to reforms (box)."These agencies haven't remembered what happened to them in the '70s," says University of Georgia scholar Loch Johnson, who as a staff member on the House and Senate intelligence committees helped draft those reforms. "You heard the same arguments back in the Johnson and Nixon administrations: 'Why do you want to shackle our hands?' "
At the heart of the debate over domestic spying is a reassertion of presidential power. Legal advisers to the president have made a case for sweeping executive authority during wartime. The White House's authority to render terrorism suspects jailed without trial and run warrantless eavesdropping, they argue, is authorized by a congressional war resolution passed after 9/11 and by the Constitution's grant of war-making power to the commander in chief. Among the prime supporters of this position is Vice President Dick Cheney, who as White House chief of staff under Gerald Ford saw Congress take back considerable amounts of executive power after the abuses of the Nixon era.
But Congress and the courts may now be pushing back. Legal challenges to the administration's detention policy and the FBI's national security letters are winding their way through the courts. On Capitol Hill, the controversy has already taken one casualty: the renewal of the U.S.A. Patriot Act, the wide-ranging antiterrorism bill Congress passed after 9/11 to give law-enforcement agencies broader investigative powers. Concerned about the civil liberties implications of the bill, Congress extended the measure, but only until February 3. That means the act's renewal will be debated again in late January--probably at the same time as the Senate hearings on surveillance. A question for the White House now is how the controversy might affect the confirmation chances of Supreme Court nominee Samuel Alito. In 1984, as a Reagan administration lawyer, Alito drafted a memo supporting immunity for officials from lawsuits if they approved domestic wiretaps without warrants.
In the end, the White House may be helped by some unlikely allies--national security veterans who, while critical of the administration, warn against overreacting to charges of domestic spying. They say that needed work by the NSA and others to track terrorists may suffer from what they see as the White House's earlier overreaching, particularly on its endorsement of secret detentions and brutal interrogation techniques. "We have an administration that has taken a number of actions seen as seriously inconsistent with American values and expectations," says Elizabeth Rindskopf Parker, a former general counsel to both the NSA and the CIA and now dean of the University of the Pacific's McGeorge School of Law. "But we have to be careful not to throw the baby out with the bath water."
With Angie Marek and Ken Walsh