The Senate Intelligence Committee, in deciding last week not to conduct a full investigation of President Bush’s long-secret program authorizing warrantless surveillance of Americans by the National Security Agency, has abdicated its responsibilities. In agreeing to a compromise that would allow a few more senators and House members to be briefed on the program, it agreed to acquiesce to an arguably lawless program without gathering sufficient information to know whether it is desirable, legal or even useful.
The background is important here. The National Security Agency, a military organization, was set up during the Cold War to do surveillance on overseas communication but not on Americans. After evidence of abuses in the 1970s, Congress, in the Foreign Intelligence Surveillance Act of 1978, created a secret FISA court (made up of federal judges). That court authorizes warrants in the rare instances when the NSA felt eavesdropping on Americans was justified. Over its lifetime the FISA court has rejected fewer than a dozen of these requests for warrants.
After 9/11, President Bush secretly authorized a program for the NSA to do systematic surveillance of Americans who had electronic communications with suspects or persons of interest overseas. Since Congress had already set up a system for such surveillance — the Foreign Intelligence Surveillance Act and FISA court — there’s a case to be made that the president, however broad his inherent powers, was acting outside the law. If he believed the Foreign Intelligence Surveillance Act process was too cumbersome in the age of stateless terrorism, the honest thing to do was to ask Congress to change the law.
We know about this program only through leaks to the news media. We don’t know how many people were surveilled, or how strong the evidence was that they had some connection to terrorism. We don’t know whether evidence gathered in this manner was later used to get Foreign Intelligence Surveillance Act warrants. We don’t know for sure whether all this amounted to an abuse of executive power. These and other questions require answers before Congress can know how to proceed.
An investigation could have provided many of the answers, but the Senate Intelligence Committee punted the issue and set up an oversight system with no teeth that would, as former Georgia Republican Rep. Bob Barr of Patriots to Restore Checks and Balances said, “whitewash all the illegal spying that has already occurred and prevent Congress from understanding the breadth of the program going forward.”
The Senate Judiciary Committee and several House committees may still do investigations into this intrusive program, but we’re not holding our breath that they will do so with the vigor required.