Equilibrium, i.e. non-dictatorial
(or the Domestic Spying/Terrorist Surveillance Program)

I recorded the entire Senate Judiciary Committee hearing with Attorney General Gonzalez about the administration's NSA domestic spying program and watched the entire thing.

The hearing focused on a program Bush authorized for the NSA that allows it to use warrantless electronic surveillance on international communications from Al Qaeda or affiliated groups with American citizens within the "homeland." Warrantless means the other two branches of government have no oversight or "check" on what the administration is doing in regards to the domestic half of the international communication being spied upon.

Justice Jackson's concurring opinion in the "Youngstown Sheet & Tube Co. v. Sawyer" Supreme Court decision was referred to by some because of its discussion of the limits of the Executive branch's powers.

The 1978 Foreign Intelligence Surveillance Act (FISA) was Congress's response to the abuses of wiretapping by previous administrations. Apparently, according to this law the government needs a warrant from a special Foreign Intelligence Surveillance court in order to perform certain electronic surveillance. Shortly after 9-11 and the 2001 resolution, the Authorization of the Use of Military Force (AUMF, against al Qaeda) given to the President by Congress, the administration decided that it didn't need to go to this court to get warrants for NSA spying on international communications from al Qaeda or related groups to American citizens in the US.

The issue is that half of the communication is within the US and hence domestic. Attorney General Gonzalez told the hearing the President didn't authorize a warrantless domestic to domestic communications surveillance program, because of the politics, essentially. However, he didn't say whether or not the AUMF, or the Constitution, gave the Executive that power.

It looks like politics, the media and the public will decide this issue. It came to light because of a leak and, outside the Executive branch, only the top 8 members of Congress regarding intelligence issues had been informed of the program. (Gonzalez said because of the AUMF and the Executive's constitutional powers, it wasn't required to inform anyone else.)

However, after 9-11 Congress changed FISA to make it easier to use. Someone elsewhere on the Internet wrote

While Feinstein touched on it, what is the explanation of the Administration for the clause in FISA allowing the President warrantless wiretapping for 15 days after Congress declares war? According to Gonzalez, FISA is Constitutional, he just doesn't think it applies in time of war. So what was the point of that clause? According to him, wouldn't that clause be unconstitutional because it appears to limit Presidential powers in wartime?

Gonzalez told the hearing that the AUMF superceded FISA - or did he? - plus FISA is too burdensome. Well if FISA doesn't apply because of the AUMF, how is it burdensome? And how come this program wasn't mentioned when FISA was altered after 9-11?

Interestingly, Gonzalez noted that the AUMF is *not* a declaration of war by Congress, but simply what it states: a Congressional authorization of the use of military force.

Republican Senators Specter, Graham, DeWine and Brownback all questioned the administration's use of the AUMF to back up the legality of the NSA/al Qaeda-domestic spying program. As the New York Times reports

Mr. Gonzales also clarified again a statement he made on Dec. 19, a few days after the spying program was disclosed by The New York Times. At the time, he said the administration had not sought an amendment to the 1978 law because "certain members of Congress" had "advised that that would be difficult, if not impossible." Since then Mr. Gonzales has said the real problem is that such legislation could not be enacted without compromising the program.

So it sounds like they knew the other branches of government would see it as a power grab.

Those who subscribe to the Vic Mackey* theory of law enforcement wonder what the big deal is. They should study the domestic spying abuses which led to the encactment of the 1978 FISA law and consider the experience of other countries which don't value a system of checks and balances. Senator Specter spoke of the equlibrium amongst the various branches of govenment and warned that the administration may be disturbing it. All he recommended, though, was that the administration bring the program before the FISA court and see what it had to say. Perhaps there's a chance Congress will do something if Gonzalez doesn't follow his advice, but it looks like this will be decided by the public and politics rather than the law and Constitution.

Emily Bazelon writing in Slate on the hearings.

blogger Glenn Greenwald

Noah Feldman writing in the New York Times Magazine

*character on the television show The Shield