NSA Spying Program on Trial

Concerns over the warrantless domestic spying program by the National Security Agency (NSA) have not gone away. Congressional hearings continue and expand as legal actions begin.

Sens. Arlen Specter (R-PA) and Patrick Leahy (D-VT), chairman and ranking member, respectively, of the Senate Judiciary Committee, conducted another round of hearings on the NSA program. In the first round of hearings on Feb. 6, Attorney General Alberto Gonzales defended the program as both necessary and legal. Gonzales argued that the NSA program is in conformity with the Foreign Intelligence Surveillance Act (FISA) and the Fourth Amendment.

The Feb. 28 hearings continued to focus on the legality of the program. Bruce Fein, former Associate Deputy Attorney General at the Department of Justice in the Reagan administration, railed against the program, stating in his testimony that we are at "a defining moment in the constitutional history of the United States." Fein maintained that the NSA program violates FISA and the Fourth Amendment and called the administration's argument for the legality of the program "preposterous." Fein also argued that Congress should use the power of the purse to "stipulate that the president can undertake no electronic surveillance for foreign intelligence purposes outside of FISA, unless within 30 days the president comes forward with a plan that this Congress agrees will be treated on a fast track basis like trade negotiations and let the burden be on the administration to explain to this committee why changes are necessary."

Arguments in support the NSA program were made at the hearings by, among others, law professor Doug Kmiec, who stated in his testimony that we should not be concerned with the legality or illegality of the program but rather with "what is the appropriate course as we go forward." Kmiec reasoned that the security of the country is at stake in the war on terrorism, and we should, therefore, focus on what is the appropriate program to confront that challenge and not whether such a program is in conformity with FISA and the Fourth Amendment, as "there is a genuine argument on both sides of that question." Former CIA director James Woolsey also defended the legality of the NSA program, arguing that "the inherent authority of the president under Article II, under these circumstances, permits the types of intercepts that are being undertaken."

Today, on March 7, the Senate Intelligence Committee is holding a closed-door hearing to review the NSA spying program. White House officials, in light of polls that show six in 10 Americans think that Congress should have oversight of the NSA program (e.g. American Civil Liberty Union's (ACLU) poll), have made more of an effort to brief Congress on the program. An attempt to require the White House to provide all documentation relating to the NSA spying program was voted down in the House Intelligence Committee. Reps. Pete Hoekstra (R-MI) and Jane Harmon (D-CA), chairman and ranking member, respectively, of the House Intelligence Committee, did agree, however, to expand committee oversight of the NSA program and conduct a review as to whether FISA needs to be modified.

Not waiting for Congress to decide whether the NSA program violates law or procedures, the Center for National Security Studies and the Constitution Project submitted an amici curiae brief to the FISA Court in case the court decides to take action. Having learned that the FISA Court received a confidential briefing from the administration on the legality of the NSA spying program, the two organizations submitted the brief to offer an opposing position. The brief argues that the NSA program "not only violates the clear mandates of the [FISA] statute and the Fourth Amendment, it constitutes the very 'exercise of arbitrary power' by the Executive that the Founders sought to prevent by adopting "the doctrine of separation of powers ... [at] the Convention of 1787.'"

In other court action, the Washington Post reported that the Al-Haramain Islamic Foundation, a Portland-based charity that had its assets frozen and is now defunct, filed suit against the Bush administration in federal court last week. The charity alleges that it was subject to the NSA spying program and that such surveillance of its communications violates, among other things, FISA and the Fourth Amendment. Citing classified documents, the lawsuit may offer the first concrete evidence of the NSA program's surveillance of domestic communications.

Other cases involving the NSA spying program played out in Michigan and Washington, DC. The ACLU filed a lawsuit in Michigan against the NSA, arguing that the spying program violates the "First and Fourth Amendments of the United States Constitution" and the separation of powers principle. In addition, on Feb. 16, a federal judge for the District Court of the District of Columbia ordered the Department of Justice to respond to requests by the Electronic Privacy Information Center under the Freedom of Information Act (FOIA). The groups is seeking records concerning a presidential order or directive authorizing the NSA to conduct domestic surveillance without the prior authorization of the FISA court. The court ordered the department to respond to these requests by March 8.