What is the NSA spying furor all about?

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON -- Attorney General Alberto Gonzales, testifying before the Senate Judiciary Committee Monday, defended President Bush’s decision to use the National Security Agency to conduct surveillance of international phone calls of suspected al Qaida members or associates when one party to the conversation is located outside the United States.

The surveillance program has sparked debate, with Bush administration critics such as Sen. Russ Feingold, D-Wisc., accusing the administration of violating federal law by conducting searches without a warrant.

Here’s a guide to the NSA debate.

What is the NSA doing in its surveillance program?
According to Gonzales, the program “is focused on international communications where experienced intelligence experts have reason to believe that at least one party to the communication is a member or agent of al Qaida or a terrorist organization affiliated with al Qaida.”

Is this NSA spying legal?
Neither the Supreme Court nor any lower federal court has yet ruled on the legality of this program. Administration lawyers insist it is legal, but its opponents insist it isn’t.

What law usually applies to spying on foreign agents or terrorists inside the United States?
The 1978 Foreign Intelligence Surveillance Act (FISA) is the law that regulates electronic surveillance.

The FISA law set up a special court, the FISA court, which reviews applications for search warrants for eavesdropping on foreign agents and terrorists.

What are the arguments for the legality of the NSA operation?
The Bush administration has made two basic arguments.

One is that the Sept. 14, 2001 use of force resolution which Congress passed to authorize Bush to fight al Qaida included, by implication, the power to eavesdrop on al Qaida contacts inside the United States.

The FISA law says that the government cannot engage in electronic surveillance "except as authorized by statute." And according to Gonzales, “in this case, that other statute is the Force Resolution.”

Secondly, the administration argues that any president has inherent power under the Constitution to wage war, spy on our foreign enemies, and protect the country from attack.

Bush argued in his State of the Union address that the NSA program is needed because “If there are people inside our country who are talking with al Qaida, we want to know about it, because we will not sit back and wait to be hit again.”

What are the arguments that critics of the NSA program are making against it?
Senate Judiciary Committee chairman Sen. Arlen Specter, R-Pa., has questioned whether Congress, when it passed the use of force resolution in 2001, really meant to allow Bush to order NSA surveillance outside of the confines of the FISA law.

Why, he asks, didn’t the Bush administration specifically ask Congress in that use of force resolution for permission to do NSA surveillance? Also, he asks, why didn’t Bush ask Congress for the authority to do NSA surveillance when Congress was debating the Patriot Act in 2001?

So why didn’t Bush go to Congress and ask FISA to be amended so as to allow the NSA program?
Gonzales said on Dec. 19, “We have had discussions with Congress in the past — certain members of Congress — as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.”

Does the Fourth Amendment to the Constitution apply to this kind of spying?
The Fourth Amendment protects people “against unreasonable searches and seizures.”

It also says, “No Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Gonzales has argued that the Fourth Amendment “has never been understood to require warrants in all circumstances. For instance, before you get on an airplane, or enter most government buildings, you and your belongings may be searched without a warrant.”

Why did the administration not use the existing FISA process?
Gonzales has argued that the FISA process takes too long. Surveillance decisions must be left “to the judgment of professional intelligence officers, based on the best available intelligence information. They can make that call quickly. If, however, those same intelligence officers had to navigate through the FISA process for each of these intercepts, that would necessarily introduce a significant factor of delay, and there would be critical holes in our early warning system.”

But the administration's critics, such as a group of law school professors including former Solicitor General Walter Dellinger, say that FISA is absolutely clear that it alone is "the exclusive means" by which the president and the NSA may conduct electronic surveillance.

They point out that FISA allows surveillance of a specific person to begin immediately as long as the government obtains judicial approval within 72 hours. And whatever its burdens are, they say, there is simply no way for a president to avoid the dictates of FISA.

Does this NSA program make the FISA court redundant?
Specter has suggested that the administration erred by cutting the FISA judges out of any role in the NSA program. “What would satisfy a lot of people would be if there were a check and balance on what the executive (branch) is doing,” Specter said. “The FISA court is trained in this, they know this field. Also they don’t leak. They’re the only unit in town which is relevant and which doesn’t leak.”

If you make a phone call from Omaha to Boston, will you be subject to surveillance under this NSA program?
No, not according to Gen. Michael Hayden, the Principal Deputy Director for National Intelligence and other Bush administration officials.

Says Hayden: “This is not about intercepting conversations between people in the United States. This is hot pursuit of communications entering or leaving America involving someone we believe is associated with Al Qaida.”

Is it accurate to call the NSA program “domestic spying”?
The Bush administration and its allies answer that question with this question, “Is a flight from Paris to New York a domestic flight?”

The debate on the terminology is driven by the politics: foes of the NSA program use the phrase “domestic spying,” while President Bush and administration officials use the phrase, “a terrorist surveillance program.”

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