Congress Should Investigate Warrentless Wiretaps

It's disappointing that the Senate's first response after learning the President has crossed the line, is to move the line without considering why it was there to begin with.

Developments last week suggest that lawmakers' investigation into the president's warrentless domestic spying program may be hijacked by an effort to pass legislation that would legalize his actions, codifying the power he's claimed under color of his general authority to conduct a war on terror.

While providing statutory cover for the surveillance may alleviate the “constitutional crisis” triggered by the president acting without Congress' permission, it does not address the real question the program raises: should the government be listening to the conversations of thousands of Americans who have done nothing more than communicate with someone on the government's terrorist watchlist?

This issue has been largely overlooked in the current debate. People have a reasonable expectation of privacy in their phone calls. They certainly have no reason to suspect their conversations about the mundane aspects of everyday life are being listened to by agents in Maryland.

It is not, as the government has suggested, a small number of people who are affected by the warrentless surveillance program. The National Counterterrorism Center revealed last week that the government's watchlist contains 325,000 names of international terrorism suspects or people who have allegedly aided them. How many pizza delivery guys, real estate agents, and next-door neighbors have those people talked to while this program has been in place? On how many of those innocuous phone conversations was a government agent listening? More disturbing, how many innocent people have been added to the list because they brushed against someone already on it?

Oddly enough, privacy advocates find themselves arguing that the chief problem with the program is that it does not comply with the Foreign Intelligence Surveillance Act. But until now, FISA has hardly been seen as a bastion of civil liberties protection. It gives the government great powers to wiretap, the only oversight being a secret court housed in the Justice Department's own headquarters that has almost never said no to a government request. Since passage of the Patriot Act, officials can even get retroactive approval for a wiretap 72 hours after the fact. They can tap first, and answer questions later.

But even the FISA requires the government to suspect that the proposed surveillance target is acting on behalf of a foreign power or terrorist group. That's the one nod to long-held civil liberties protections that remains in the statute, and the very thing Congress now proposes to eliminate as a flaw: the law was not designed for a sweeping surveillance program in which the government takes every name found in a bad guy's phonebook, or e-mail address found on his computer, and eavesdrops on all of them. The law didn't contemplate a fishing expedition in which you're considered a threat until the government has heard enough of your private phone calls to rule you out.

The real question that needs to be answered is whether it is reasonable to allow the government to listen in on all those conversations without requiring that they have some basis to believe something suspicious is underway. This is different from the question of whether the president had the power to execute these taps.

Last Thursday, a federal judge ordered the Department of Justice to process and release by March 8 documents related to the program, requested by the Electronic Privacy Information Center under the Freedom of Information Act. “President Bush has invited meaningful debate about the warrantless surveillance program,” U.S. District Judge Henry H. Kennedy wrote. “That can only occur if DOJ processes the FOIA requests in a timely fashion and releases the information sought.”

It's disheartening that it's only a lone federal judge who recognizes that public dissemination of documents concerning this program is needed to inform the debate. Congress should demand the documents, conduct a thorough investigation, and inform the public about the nature and scope of that program. Only then can we conduct a meaningful discussion about whether a change in the law is necessary or desirable.