Surveillance sparks senate debate

Author: Andrea Glaessner

At Congressional hearings of the National Security Agency (NSA) in early February, Attorney General Alberto Gonzales faced a skeptical Senate armed with questions regarding the legality and modus operandi of the highly covert terrorist surveillance program. In his testimony, Gonzales sought to instill that the Bush administration's authorization of the National Security Agency's post 9/11 terrorist surveillance program was both "lawful and necessary."

The Attorney General argued in favor of the surveillance of phone calls and emails between US citizens and persons overseas without warrants in a lengthy discussion of justification but offered severly limited responses about the operational procedures of the program arguing that discussing details would endanger the necessary confidentiality of the surveillance program.

Furthermore the Attorney General made it quite clear that the Bush administration has no intentions of slowing down in its search for information about al-Qaeda via domestic surveillance, arguing that that the process to obtain a warrant under the Foreign Intelligence Surveillance Act (FISA, passed in 1978) is a cumbersome bureaucratic obstacle and inhibits the "speed and the agility" necessary in the conflict with al Qaeda which he dubbed "a war of information."

At the hearing, many legislators expressed frustration with Gonzales' avoidance to address questions that the attorney general feared would "put the lives of Americans at risk." According to the New York Times report of the hearing, "the contentious tone for the debate Monday was clear in several sharp exchanges, including one in which Sen. Patrick J. Leahy, Democrat of Vermont, frustrated at not getting answers, said, "Of course, I'm sorry, Mr. Attorney General, I forgot you can't answer any questions that might be relevant to this."

In fact, weeks after the hearing, Leahy is unsatisfied with the Bush administration's failure to address and respond to his own questions about the program. In a follow-up letter to Defense Secretary Donald Rumsfeld after receiving an inadequate response to questions the Senator posed about the program, Leahy claims, "what information I did gather from the letter paints a troubling picture of a program that has gone well beyond a reasonable effort to protect the Department's installations and personnel."

Leahy expressed great concern over the Administration's purposeful withholding of certain information that he believes is necessary to be available to him in order to protect his constituents in Vermont. While he understands that revealing too much information about the program may aid terrorists in planning future attacks, Leahy has justified concerns that he feels the Administration has thus far failed to address.

In the letter to the secretary of defense, the Senator explains, "I am equally concerned about the privacy of innocent Americans who may be placed on these [terrorist watch] lists, and who, once included, are not removed under the Pentagon's routine purging of information after 90 days."

Leahy had discovered evidence that protests against the war in Iraq by such peaceful groups as the Quakers were apparently included in the Department of Defense's threat database known as Threat and Local Observation Notice (TALON), which is maintained by the recently established Counterintelligence Field Activity (CIFA).

The Senator asserts that he is not arguing against the action of wiretapping al-Qaeda, saying in his statement at the February hearing, "Congress has given the President authority to monitor these messages legally, with checks to guard against abuses when American's conversations and email are being monitored." It is the fact that "the President has chosen to do it illegally, without those safeguards", namely the lawful agreement to pass all requests to monitor domestic spying through a FISA court that has appalled Leahy and many other legislators, both Democratic and Republican.

Many members of Congress have great confidence in the FISA law and find that the NSA's ignorance of its provisions is unlawful. The statute has been updated and revised five times since September 11, 2001. According to Leahy's statement, the law expressly states that it provides the "exclusive" source of authority for wiretapping for intelligence purposes.

The Senator comments further that the historical context for FISA affirms the necessity of the statute. In his statement at the hearings, Leahy gravely reminds the audience that the law was enacted after decades of abuses by the Executive branch, including the wiretapping of Dr. Martin Luther King, Jr. and other political opponents of earlier government officials, and the White House "horrors" of the Nixon years, during which the President asserted that whatever he did was legal because he was the President.

Leahy is certainly not alone in his concern over this fundamental issue that questions the integrity of the constitutional necessity of checks and balances among government branches and the constitutionally guaranteed right to privacy. Vermont state senator Peter Welch, a Democratic candidate for Congress was one of one hundred plus cosigners of a letter in the Vermont legislature opposing this "disregard for Vermonters' basic rights."

A staunch defender of civil liberties, Welch summed his response to the surveillance program debate saying "effective public safety does not necessitate that we disregard the most fundamental rights we have as citizens. Even with a system in place to assure our security and protect our civil liberties, the Bush administration instead chose to disregard the law of the land. Nobody is above the law, especially not the President and Congress must demand accountability."

But not all Vermont politicians have felt that the surveillance programs of the Bush administration may be considered such a direct threat to civil liberties. Rich Tarrant, a Republican candidate for the Senate argues that "the power struggle between the two branches of government is historical. Especially in World Wars I and II, the government had the legal right to spy on national calls within borders. This is not some new phenomenon that's suddenly happening in the United States' democracy. It's the age-old argument about balance of power."

Tarrant's comment is aligned with Gonzales' view that the "terrorist surveillance program fits within the 'special needs' category",which dismisses the Fourth Amendment right against warrantless searches and seizures because "the purpose of the search [is] distinguishable from ordinary general crime control."

Rather than argue the constitutionality of the current program, Tarrant would like to see collective action to devise a new law to replace FISA if both parties agree that is the proper solution. According to Tarrant, it is perhaps more important to avoid "prejudging and partisan hatred" and "to pull together as a country against the common enemy." He explains that "when we have terrorists like the Jihadists who want to end our existence you have to recognize the severity of our threat. We have a common enemy that is really vicious and this enemy has been trying since the year 700 to bring people down who don't fall within the confines of their belief system."

The wiretapping debate is fundamentally about the balance between security and liberty as well as the balance of power within government. It is a universal debate, defying partisan lines and affecting all citizens of this country. The New York Times noted that after his daylong testimony, Mr. Gonzales still faced skepticism from Republicans, notably Pennsylvania Republican Senator Arlen Specter, the Chairman of the Senate Judiciary Committee, and a senior member of the Appropriations and Veterans Affairs.

According to the Times article, "At the end of the hearing, Mr. Specter pronounced a harsh verdict: he was not persuaded by the admini
stration's case…Mr. Specter urged that the administration let the court "pass judgment" on the legality of the program. "Because if they disagree with you," he said, "it's the equilibrium of our constitutional system which is involved."