Legality of spy program deserves serious look

President Bush’s administration has been conducting a full-court offensive to persuade Americans that the program of surveillance of Americans by the National Security Agency without a warrant was not only legal but virtually obligatory after the terrorist attacks of 9/11.

The campaign is no doubt intended to soften public opinion in advance of hearings into the matter scheduled for next week by the Senate Judiciary Committee.

The trouble is, every argument the administration makes rests on shaky legal ground.

The Foreign Intelligence Surveillance Act was passed in 1978 precisely to control the use of surveillance technology by the government in the wake of abuses documented during Vietnam and Watergate. While the act allows for some emergency exceptions, it specifically says, “the procedures in this chapter ... shall be the exclusive means by which electronic surveillance may be conducted.”

Supreme Court precedent says that when Congress has legislated in a specific area the president’s authority to act in a way other than specified by law, even during wartime — which Congress was never asked to declare — is at its weakest. And the FISA law says, “A person is guilty of an offense if he intentionally engages in electronic surveillance ... except as authorized by statute.”

One can understand the president authorizing some surveillances without warrant as an emergency situation seemed to warrant it. But this systematic program has been under way for four years. That’s plenty of time to get Congress to adopt new procedures if they were needed. That would have been the right way to do it. Indeed, the USA Patriot Act contained a few minor tweaks to the FISA system, so getting Congress to act on new procedures was hardly out of the question.

Abraham Lincoln has been criticized, and rightfully so, for suspending the right to habeas corpus unilaterally during the Civil War. But when it became apparent the war was going to go on a while, he went to Congress and got authorization for what he had done. That’s a sound precedent.

It is difficult to avoid the conclusion that the administration wanted to undertake surveillance that the FISA court — which has refused only a handful of requests for warrants to do surveillance in the last 20 years — and Congress would not have authorized if asked to do so openly.

We hope the Judiciary Committee explores these and other questions aggressively, without the kind of grandstanding we saw during the Alito hearings, and in a format that allows plenty of time for follow-up questions and perhaps incorporates staff counsel as well as senatorial questions. The issue of whether the president deliberately broke the law — even with pure intentions — is serious enough to warrant extended exploration.