A year later, little is clear on warrantless U.S. wiretaps

A year later, little is clear on warrantless U.S. wiretaps
By Eric Lichtblau
Copyright by The New York Times
Published: November 24, 2006

WASHINGTON: When President George W. Bush went on national television one Saturday morning last December to acknowledge the existence of a secret wiretapping program outside the courts, the fallout was fierce and immediate.

Bush's opponents accused him of breaking the law, with a few even calling for his impeachment. His backers demanded that he be given express legal authority to do what he had done. Law professors weighed in, civil rights groups sued, and a federal judge in Detroit declared the wiretapping program unconstitutional.

But for all the sound and fury in the past year, not much has changed. The wiretapping program continues uninterrupted, with no definitive action by either Congress or the courts on what, if anything, to do about it. Political brinksmanship has led to what is essentially a stalemate so far over the limits of presidential power.

With legal challenges still percolating through the courts, Bush administration officials say they are concerned they could have to shut down a program they deem vital to national security. Democrats, newly empowered in Congress, want to press for more facts about the operation but appear of mixed mind on the best way to attack it, partly because they do not want to be accused of appearing soft on terrorism. And congressional Republicans, for their part, see a missed opportunity to resolve the many questions hovering over the operation.

"We could've fixed this early on," said Senator Arlen Specter, the Pennsylvania Republican who leads the Senate Judiciary Committee and who believes the surveillance program violates the 1978 law requiring a court order for counterterrorism wiretaps.

"For every day that passes," he said in an interview, "there's an invasion of privacy that could be cured."

To understand the nature of the debate over the National Security Agency's wiretapping program, one need look no further than Specter himself.

After the program was first publicly disclosed last Dec. 16, Specter called the program an "inappropriate" usurpation of authority that "can't be condoned." He signed onto a bill written by Senator Dianne Feinstein, Democrat of California, that would effectively ban the program as it is now operated and require a court order for all wiretapping of Americans.

Then, after a series of confidential meetings with the White House, Specter worked out a compromise to bring the program before a secret intelligence court to test its constitutionality. He was promptly criticized by Democrats for giving away too much to the White House.

With that idea stalled, Specter changed course again last week and submitted a proposal that would require court warrants for eavesdropping on communications coming out of the United States, but not into it, and would put the whole issue on a fast track to the Supreme Court.

The lack of a resolution has left many shaking their heads. Some officials said the unanswered questions had cast doubt on the public credibility of broader intelligence operations and had created occasional confusion among intelligence agents over what is and is not allowed in tracking terror suspects.

"There's a lot of uncertainty over this program," said a former senior intelligence official who spoke on condition of anonymity because the wiretapping program remains classified. "We've had a wasted year at this point, and nothing has been done to try to really figure out how or whether we should amend the process."

The program, secretly approved by Bush weeks after the Sept. 11 terrorist attacks, authorized the National Security Agency, which historically has been restricted from spying within the United States, to eavesdrop without court warrants on the international communications of Americans with suspected links to Al Qaeda and other terror groups.

The program has been used to monitor thousands of telephone calls and e- mail messages, people with knowledge of the operation say. Senior administration officials say it has proved a critical tool in identifying previously unknown plots, but other government officials involved in the operation have expressed skepticism, saying it has led far more often to dead ends and to people with no clear links to terrorism.

The Bush administration has been steadfast in its defense of the program and has warned of the serious threat to national security were it stopped.

The legal authority, the administration argues, rests on both the president's inherent constitutional authorities as commander in chief as well as a congressional resolution, passed days after Sept. 11, authorizing the use of military force against Al Qaeda.

The only judge to rule directly on the question, Judge Anna Diggs Taylor of U.S. District Court in Detroit, rejected the administration's claims to broad executive authority, ruling the program illegal in August and ordering it shut down.

"There are no hereditary kings in America and no powers not created by the Constitution," the judge wrote.

The Justice Department is appealing.

"It would certainly be good to have clarity on this," said a senior Justice Department official, who was given anonymity to discuss the department's internal thinking. "Do people want resolution on a program this important? Sure."

It is also unclear what tack Democrats will take on the program once they take control of Congress in January. Some Democrats favor an aggressive strategy that would brand the program illegal and move to ban it even as the courts consider its legality. Others favor a more politically cautious approach, stressing the rule of law but not giving Republicans the chance to accuse them of depriving the government of important anti-terrorism tools.

A critical first step favored by Representative Nancy Pelosi of California, who will take over as House speaker in January, will be an aggressive investigation to determine how the program operated and its legal framework under the Foreign Intelligence Surveillance Act of 1978, a senior aide to Pelosi said.

"There is a bipartisan interest in seeing whether the administration's claims that the program can't comply with FISA are indeed so," the aide said, noting that the White House has agreed to only limited classified briefings on the program's operations.

"We were legislating on an issue," the aide said, "where the full parameters were not known or well understood."