Bye-Bye to Secret Spy Program?
Why the fate of President Bush's eavesdropping program is dangling by a thread
Republicans who limped back to Washington for a lame duck congressional session last week found a host of marching orders from President Bush, but perhaps none more urgent than this: Before Democrats take control of Congress in January, they must pass legislation authorizing the National Security Agency's domestic eavesdropping program.
His plea for a legislative stamp of approval on the controversial spy effort is an "important priority in the war on terror," Bush said. The response: deafening silence. Senate Majority Leader Bill Frist quickly dispatched aides to put out the word on Bush's request: Not gonna happen.
Outgoing Senate Judiciary Committee Chairman Arlen Specter introduced yet another bill last week that he says would ease the concerns of privacy advocates while allowing the spying program to continue, but the odds of getting any last-ditch legislation through his committee, the House, and a Senate vote before Republicans cede control are formidable.
So after nearly a year of high-stakes wrangling on the Hill, heated debates over privacy and presidential authority, and a flurry of lawsuits against the administration and telecom companies for allegedly aiding the surveillance program, Congress appears to be back to square one. And with Democrats promising oversight hearings next year on how the program was hatched and whom it targets, it appears likely that the issue will be decided in court and, ultimately, the Supreme Court.
"No kings." The eavesdropping program, launched in secret after the 9/11 attacks, was revealed last December by the New York Times. The newspaper also reported that the government failed to get surveillance warrants from a secret court that monitors domestic spying. During the ensuing uproar, the president defended the program as targeting only domestic communications that originate overseas. His lawyers have argued that the president's executive wartime authority precludes his having to seek surveillance warrants. Says Todd Gaziano, director of the conservative Heritage Foundation's Center for Legal and Judicial Studies: "Every president has engaged in the equivalent of warrantless wiretapping and surveillance-the only difference is that this administration is being far more sensitive to civil liberties."
Nonetheless, some three dozen legal challenges have been filed questioning the program's legality and Bush's wartime powers claim. A slew of the cases also take aim at telecom companies for providing confidential customer data to the NSA. Under federal communications law, customer call records are protected from disclosure, though there is an effort by Bush and other conservatives to grant the companies retroactive legal immunity.
The most-watched court case is in Detroit, where U.S. District Judge Anna Diggs Taylor has ruled that the program violates U.S. citizens' privacy and free-speech rights and illegally skirts review by the special Foreign Intelligence Surveillance Act court. "There are no hereditary kings in America, and no powers not created by the Constitution," Taylor wrote. Administration lawyers won a stay to keep the program running and are appealing Taylor's ruling.
Oral arguments could be heard as soon as early next year. And Marc Rotenberg, executive director of the Electronic Privacy Information Center, which has sued to obtain information about the spy program, said the case will set a benchmark for how other cases may proceed.
Another closely watched case is being heard in San Francisco, where AT&T has been sued for allegedly providing customer call records to the NSA. A federal judge there rejected the government's request that the case be dismissed because it might reveal state secrets. That decision has also been appealed.
On Capitol Hill, some conservatives say they'd be happy if the eavesdropping bills remain dormant-that the issue can be left to the courts to resolve. They're also content, they say, to let the Democrats take the political risk of pursuing the president on a contentious national security issue while the 2008 presidential election gathers steam. But Caroline Fredrickson, the chief lobbyist for the American Civil Liberties Union, says that may be a miscalculation. "Members of Congress are probably paying pretty close attention to what the voters said last week," she said, "and I don't think voters said they want the president's illegal program authorized." What the courts say could be another thing entirely.
This story appears in the November 27, 2006 print edition of U.S. News & World Report.