I’ve never fully understood the administration’s response to why their warrantless-search program only monitors calls if one end of the call lies outside the United States. Officials say they’re monitoring terrorists, protecting the country, and ignoring FISA because the threat is so great, and the surveillance is so valuable, that they have no choice but to use this program.
But in the very next breath, they also say that if there’s a call between two suspects, both of whom are on U.S. soil, the call is not monitored. This just doesn’t make any sense. The WaPo had a good piece today on the contradiction.
Many national security law experts said yesterday that the distinction makes little sense legally, because the administration concluded that President Bush has the constitutional authority to order wiretaps on U.S. citizens and residents without court approval.
Once that threshold is crossed, numerous experts said yesterday, there is little reason to limit the kind of calls that can be intercepted. It is irrelevant where the other contact is located, they said.
“The rationale for this surveillance has nothing to do with anything tied to a border,” said Geoffrey R. Stone, a University of Chicago law professor critical of the administration’s legal justifications for the NSA program.
“There’s no pragmatic reason and no principled reason why, if it is okay for NSA to listen in on phone calls between someone in Detroit and Pakistan without a warrant, they also can’t listen in on a phone call between Detroit and New York,” Stone said.
Just to be clear, I’m not encouraging the administration to engage in warrantless searches of purely domestic phone calls; I’m just noting that within the administration’s defense, the distinction is bizarre.
I’d feel better about the contradiction if the Bush gang could come up with a half-way coherent explanation for it. So far, they haven’t.
Testifying before the Senate Judiciary Committee this week, Attorney General Alberto Gonzales tried to explain why it’s okay to listen in on calls with one American, but not two.
“Senator, think about the reaction, the public reaction that has arisen in some quarters about this program. If the president had authorized domestic surveillance, as well, even though we’re talking about Al Qaida-to-Al Qaida, I think the reaction would have been twice as great.
“And so there was a judgment made that this was the appropriate line to draw in ensuring the security of our country and the protection of the privacy interests of Americans.”
Even by Bush administration standards, this explanation is ridiculous. First, there’s no reason the White House, four years ago, had to worry about “the public reaction.” This was a confidential surveillance program; the public wasn’t going to find out. Second, the Bush gang isn’t supposed to be worried about public outcry — according to their rhetoric, they’re far more concerned with preventing terrorist attacks than popularity.
And third, if an al Queda terrorist is talking to another al Queda terrorist, and they’re both on American soil, the Bush administration is suddenly concerned with protecting privacy interests? Gonzales expects people to believe this?
Sen. Herb Kohl (D-Wis.) called the arguments “incomprehensible.” It seems like the appropriate word.