POLLS show the country is divided over whether the National Security Agency's program of warrantless wiretaps is an appropriate tool in the war on terror. A more fundamental question is whether the program, appropriate or not, is legal.
Defenders' pat response is to assert that warrantless wiretaps are a necessary tool against terror and to question the patriotism and will of those who would "give in" to the terrorists. Such a response is a cop out. It is not disloyal, defeatist or weak to insist that our government respect the Constitution it claims to be defending.
As the New York Times revealed in December, since 2002 the NSA has been monitoring, without warrants, communications between U.S. citizens and individuals suspected to be linked to al-Qaida.
Since 1978, however, such surveillance has been regulated by the Foreign Intelligence Surveillance Act, known as FISA.
The purpose of FISA, in the words of the Senate Judiciary Committee, was "to curb the practice by which the executive branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it."
The statute requires an application to a FISA judge for a secret warrant to conduct this surveillance. A FISA warrant is intended to be the exclusive mechanism for such wiretaps.
That the NSA program violated FISA is not really disputed. Instead, the administration argues, for two reasons, that it is not obligated to comply with FISA at all.
First, the administration suggests that Congress' post-9/11 "Authorization for the Use of Military Force" grants blanket permission for any activities necessary to combat terror, including, although not specifically listed, the warrantless surveillance expressly outlawed by FISA.
As the nonpartisan Congressional Research Service recently concluded, this argument is weak. It is clear Congress never intended for the authorization to supersede FISA: The authorization does not discuss surveillance and the issue was never debated or discussed.
The Bush administration points to the U.S. Supreme Court case involving Yaser Hamdi, a U.S. citizen captured in Afghanistan. In Hamdi v. Rumsfeld, the court held that implicit within the authorization for the use of military force was the authority to hold citizens as prisoners of war. The administration argues that domestic surveillance is similarly authorized, even though it, too, is not specifically mentioned.
This is a very questionable argument. Hamdi was very narrowly decided, and it is difficult to believe that the Supreme Court would place warrantless domestic wiretaps in the same category as detention of enemy combatants.
The administration's second argument is that the president has inherent constitutional authority to conduct warrantless surveillance. Without saying so directly, the administration is claiming that FISA's restrictions on presidential surveillance authority are unconstitutional.
This argument, too, is questionable. It is based almost exclusively on pre-FISA court cases that held the Constitution implicitly permits the president to conduct this type of surveillance. Constitutional permission, however, is not the end of the story. While the Constitution may not require a warrant, Congress can.
No one has ever attacked the constitutionality of the FISA statute in this manner, and in fact, until the news story broke in December, the administration publicly claimed to be following FISA.
What is most troubling is that it is not the administration's prerogative to decide, in secret, not to comply with FISA. The Supreme Court, not Attorney General Alberto Gonzales, is charged with reconciling laws and determining whether they are constitutional. The administration bypassed the court and Congress, preferring its own secret judgment. Worse, because this program was classified, it was exceedingly unlikely that anyone else would ever challenge the administration's aggressive interpretation. The plan was only disrupted by the New York Times reports, which are, ironically, now the subject of a Justice Department investigation. But for these leaks, however, no one outside the administration, save perhaps a few politically reliable congressional confidants, would have been the wiser, and none of the checks and balances of our delicate constitutional framework would have been given the chance to work.
The administration knew it was dealing with a controversial and potentially dangerous intrusion on individual rights. The president repeatedly explained the program's "safeguards," as if these purely voluntary measures should reassure us. While they highlight the fact that the administration knew it was dealing with dynamite, these defenses miss the point entirely: Checks and balances operate between the branches of government, not within them. Congress makes the laws, the Supreme Court reviews them and the president enforces them.
Even if we take for granted that this president is acting in good faith, it is worth remembering that in just a few years a new administration will inherit this program — one that may not share such this administration's professed self-restraint. The knee-jerk defenders of the current president's unilateralism should take a moment to ponder how they would react to a Hillary Clinton administration running the program without oversight.
Our system requires that the president respect laws passed by the Congress, even if inconvenient, as well as the judgment of the Supreme Court, even if it disagrees. If the NSA program is necessary, and it may be, then we should explore ways to implement it in a manner that is constitutional. That would mean amending FISA, including the legislative inefficiencies that are, unfortunately, part of such a process.
If so, so be it: Defending our system of government requires that we respect it.
Thompson is a partner in the Houston law firm Watt Beckworth Thompson & Henneman, LLP.
Hell, it can't even pass the smell test!!
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