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Analysis: Surveillance Concessions

Council on Foreign Relations

February 5, 2007
Prepared by: Lionel Beehner

In a sign of the changing winds in Washington, the White House has agreed to hand over classified material to Congress on its secret eavesdropping program. It has also allowed a secret intelligence court, established under the 1978 Foreign Intelligence Surveillance Act (FISA), to monitor its electronic surveillance activity. The program, which entailed “warrantless” wiretapping that previously had circumvented review by courts or Congress, came under heavy criticism from civil liberty groups after its exposure by the New York Times in December 2005.

The Bush administration insists it holds “inherent authority” to gather intelligence from U.S. citizens suspected of having ties to al-Qaeda and other overseas terrorists. In recent congressional testimony, Attorney General Alberto R. Gonzalez expressed concern “about the public disclosure that may jeopardize the national security of our country.” The administration’s willingness to work within the FISA system, writes Wendy J. Keefer, formerly a chief of staff in the Justice Department, “should be viewed as an example of the best of government policy development, not the worst.”

But civil libertarians and lawmakers disagree. They say the White House has violated Fourth Amendment protections from illegal search and seizure, not to mention established dangerous precedents concerning separation-of-powers issues. Critics are unsatisfied by the White House’s latest concession because it constitutes only a temporary reprieve: That is, the Bush administration reserves the right to restart the program at any time. It’s “a bit like a bank robber coming into court and arguing that, although he has been sticking up banks for the past half-decade, he has agreed to a temporary halt and therefore he shouldn’t be prosecuted,” writes Professor James Bamford of the University of California-Berkeley in the New York Times.

Read the rest of this article on the cfr.org website.

Copyright 2007 by the Council on Foreign Relations. This material is republished on GlobalSecurity.org with specific permission from the cfr.org. Reprint and republication queries for this article should be directed to cfr.org.