Reversal on Spying Shouldn't Derail Investigation

In a letter to Congress on Jan. 17, Attorney General Alberto Gonzalez announced that the Bush administration had reversed its position and would now place its domestic National Security Agency spying program under the jurisdiction of the Foreign Intelligence Surveillance Court, as mandated by a 1978 federal law. Since October of 2001, President Bush had secretly bypassed the FISA court and ordered the warrantless wiretapping of American's phone and electronic communication where there was suspicion of a connection to terrorist activity.

While the Justice Department stated it had negotiated a "creative" new process for court review of surveillance with one of the eleven FISA Court judges, critics are suspicious that the agreement may still violate federal law. Adding to the skepticism was the fact that although the presiding FISA court judge did not object to releasing details of the new process to Congress, Gonzales opposes disseminating operational details to lawmakers.

The timing of the announcement came just after Democrats took control of Congress and two weeks before a federal court was to hear the government's appeal of an earlier ruling declaring the president's surveillance operation illegal and unconstitutional. Through all this, the White House still maintains that their warrantless spy program is legal. Between The Lines' Scott Harris spoke with Shayana Kadidal, an attorney with the Center for Constitutional Rights -- which along with the ACLU -- have filed lawsuits challenging the legality of the NSA spy program. Kadidal examines the administration's ambiguous reversal and explains why he is pressing for judicial review and congressional investigations into past abuses.

SHAYANA KADIDAL: You know, our worry here is that what might have happened is that the Department of Justice went to the Foreign Intelligence Surveillance Court, where there are 11 judges from both political parties, obviously, and went to one person who was very sympathetic and maybe convinced that person to say, "OK, in general, I think it's perfectly fine for you guys to go and listen in to conversations where only one end of the call is in the U.S., where you think that somebody who's associated with al Qaeda is on that call." Basically, a blanket authorization to carry out the NSA program. And one reason we're suspicious that might have happened here, is that the administration basically wrote a bill that Sen. Arlen Specter proposed, as kind of a compromise bill, that bill would have allowed the FISA court to do exactly what I just said, which is to authorize whole programs of surveillance without any link to sort of a specific individual person who is a target. Because you don't need that link to an individual person, you don't really need to ever go to court and say, "Here's the evidence that led us to suspect that this person was actually associated with al Qaeda."

If the court just said, "Look, anytime you think someone's associated with al Qaeda, you can listen on their phone calls," well then, that gives the government complete liberty to decide that any amount of evidence is sufficient to think that a person is associated with al Qaeda. If they use the word "terrorism" in an email, maybe they should be able to read all their emails, that kind of thing. A court has to be able to review the evidence that establishes the suspicion. You're not supposed to leave that in the hands of the executive branch. If a judge on the FISA court in fact, just rubber stamped the entire NSA program, and left that ability to weigh the evidence in the hands of the NSA and the executive branch, rather than looking at it specifically in each case, well then that's a really big problem. It's also something that, you know, is really kind of outside the scope of what FISA court judges are authorized to do by their statute.

BETWEEN THE LINES: Now, your organization, the Center for Constitutional Rights has a pending lawsuit against the NSA and other U.S. intelligence agencies challenging their legal authority to spy on Americans without court-ordered warrants. What happens to your lawsuit now?

SHAYANA KADIDAL: You know, let's say that being generous to the administration, that in fact, they've done something sort of creative and innovative -- as Gonzalez said -- and that they've come up with some sort of formula that in fact, complies with the FISA statute. We believe that we still have claims relating to the time that the illegal NSA program was in effect, and among other things, part of the relief we're asking for is to find out whether our phone calls with our legal clients overseas were listened in on. It's an important thing for our other cases to find out whether or not the government knows what we were saying to them, confidential, strategic discussions, discussions about settlements, all that sort of thing.

So, that kind of relief is something that certainly is still alive, even if they have ended the program, which is kind of unclear. And even if the replacement of that program, as it's been vetted by a FISA judge, even if that replacement is legal, we still have claims that are valid.

Beyond that, as Alberto Gonzales has said in his letter, that he still believes the NSA program as it existed before was legal, and so there's nothing to stop them from just reinstituting it anytime they want -- and we would never be the wiser for that, right? So, there is a doctrine in the case law that if a controversy is capable of repetition sometime in the future and would be able to sort of evade review because of the way that it would be resurrected, well, then a case like this doesn't necessarily end just because the illegal practice ended. The court can go on to determine whether the past illegal practice was in fact, legal or illegal. So, we believe our case is still going to be alive regardless of what happens here. But it will be real interesting to see, the ball is in the government's court, as far as trying to get our case dismissed and the other cases dismissed.

Gonzales said that he believed the cases were moot, and that they were going to try to dismiss them on the grounds that the program we were complaining about is no longer in effect. But they haven't yet filed anything like that.

BETWEEN THE LINES: What kind of thinking at the White House went into the timing of this announcement of saying the government would now comply with FISA regulations and get court-ordered warrants? Is it that they were fearful of what this new Democratic-controlled Congress might do in terms of holding them accountable for past illegal behavior, or is it concern about what a federal judge might have said in your case and other cases that were pending?

SHAYANA KADIDAL: Yeah, it could have been a little bit of both, I think it's probably a little bit foolhardy to think on their part that Congress is not going to investigate the past practices just based on some change in policy. So, I suspect it's more related to the fact that there's some key deadlines coming up in some of the court cases around the country, and also that the court cases hadn't necessarily been going the government's way. So those are both possible factors.

BETWEEN THE LINES: Now, do you think the Congress will steadfastly attempt to investigate the possible abuses of the unilateral, unchecked presidential powers to conduct surveillance against U.S. citizens that we've witnessed since 9/11?

SHAYANA KADIDAL: When the program was first made public, I think the Democrats thought that this was a losing issue, that it was too difficult to make the general public understand why unchecked executive surveillance was a bad thing. But the easy explanation which is that in the past, this has always been abused by presidents, that's it's been used to go after political opponents of presidents, like people in the civil rights movement or people in the anti-Vietnam War movement. Those kind of explanations maybe didn't resound with people, and the usual defensive comment was something along the lines, of, "If you have nothing to hide, then why are you worried that the government is listening in on you without a warrant?" That kind of a thing is a good talking point for the administration.

I think recently you've seen some signs of conviction in Congress, that they're actually going to investigate this stuff in a robust manner. Despite Gonzales going out and putting his spin on this, the Democrats in Congress have resoundingly responded by saying, "Look we're going to investigate, regardless." and that's a good sign.

Contact the Center by calling (212) 614-6464 or visit the group's website at http://www.ccr-ny.org

Related links at http://www.btlonline.org/btl020207.html#1hed

* American Civil Liberties Union

* "Bush Warrantless Domestic Spying Program Ruled Unconstitutional," Interview with Michael Avery, president of the National Lawyers Guild, conducted by Scott Harris, Between The Lines Week Ending Sept. 1, 2006

* "NSA Domestic Surveillance Tests Constitution," Interview with Chrisopher Pyle, former intelligence officer and professor constitutional law, conducted by Scott Harris, Between The Lines Week Ending May 25, 2006

* "Momentum Builds for Congressional Investigation of Bush's Warrantless Surveillance," Interview with Matthew Rothschild, editor of the Progressive Magazine, conducted by Scott Harris, Between The Lines Week Ending Jan. 1, 2006

Scott Harris is executive producer of Between The Lines, which can be heard on more than 40 radio stations and in RealAudio and MP3 on our website at http://www.btlonline.org. This interview excerpt was featured on the award-winning, syndicated weekly radio newsmagazine, Between The Lines for the week ending Feb. 2, 2007. This Between The Lines Q&A was compiled by Anna Manzo and Scott Harris.

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