Voting in the dark on eavesdropping

Senators move closer to legalizing a warrantless surveillance program they know nothing about.

Published September 26, 2006 2:35PM (EDT)

Various news reports this morning suggest that the administration has moved closer to forging a "compromise" with "dissident" GOP senators whereby the president's National Security Agency warrantless eavesdropping program would be legalized. In particular, it seems that three GOP senators who had previously announced their steadfast opposition to any attempts to legalize warrantless eavesdropping prior to Congress' adjournment this week -- Sens. Lisa Murkowski, Larry Craig and John Sununu -- are now prepared to vote in favor of such legislation.

The specific provisions of the "compromise" are quite murky. Bizarrely, even the parties to the compromise don't agree on the basic elements of what they agreed to, including the central question of whether warrantless eavesdropping would actually be authorized under the proposal. As the Times reports, "supporters billed the most recent version as a way of requiring a court order for most domestic wiretaps," whereas "some administration officials suggested that it would maintain the status quo in allowing the continuation of wiretapping without warrants under a program approved by President Bush." I will write more about the specific provisions of this latest version once I have obtained a copy of it.

But independent of one's views on the merits of warrantless eavesdropping, it is simply ludicrous for Congress to attempt to amend the Foreign Intelligence Surveillance Act to accommodate the president's NSA program, because lawmakers know virtually nothing about that program. And the reason for that is because the administration has stonewalled congressional attempts to learn about the program. Worse, the administration has brazenly and repeatedly breached the commitments it made to Congress back in March to provide information about its surveillance activities in exchange for the Senate Intelligence Committee's rejection of a Democratic motion to hold hearings to investigate the Bush administration's use of warrantless eavesdropping.

It was precisely this lack of knowledge about the NSA program they were being asked to legalize that led the three GOP senators to bravely announce their opposition to pending FISA legislation. Those three senators, along with three Democratic senators, wrote a Sept. 6 letter (PDF) to Sen. Arlen Specter urging delay of any FISA action until the Congress can find out more about the program via congressional hearings:

"We urge you to hold additional hearings in the Senate Judiciary Committee about FISA [and] the warrantless wiretapping program conducted by" the NSA ... "[W]e believe that additional information is necessary before the Senate can reasonably consider legislation that would dramatically alter FISA and significantly expand the authority of the executive branch." The entire letter is devoted to the self-evidently persuasive argument that it would be irresponsible for the Senate to enact new FISA legislation without having even the barest knowledge of the administration's warrantless surveillance activities.

Sen. Jay Rockefeller -- one of the seven members on the newly created subcommittee that the administration had promised would receive full-scale briefings on the NSA program -- has made clear that the administration continues to conceal the most basic information about the program even from the subcommittee. As he wrote on Sept. 13: "For the past six months, I have been requesting without success specific details about the program, including: how many terrorists have been identified; how many arrested; how many convicted; and how many terrorists have been deported or killed as a direct result of information obtained through the warrantless wiretapping program. I can assure you, not one person in Congress has the answers to these and many other fundamental questions."

Sens. Murkowski, Craig and Sununu boldly stated just three weeks ago that it would be irresponsible and foolish for Congress to attempt quickly to pass new FISA legislation when they know next to nothing about the program. Those senators don't know any more today about the program than they did when they wrote their letter, yet they are now announcing their willingness to vote in favor of a new FISA bill that the administration wants (and that it defiantly proclaims will allow continued eavesdropping without warrants).

Shouldn't basic personal dignity, if nothing else, prevent these senators from capitulating in such a complete and public way? And will Democrats have the courage (which was so abjectly absent in the torture debate) to block enactment of a FISA bill that would legalize a surveillance program that, independent of all its other dangers, they know nothing about? One asks those questions with the greatest trepidation. Knowing that our basic liberties and some of the most fundamental principles of our government rest in the hands of "independent Republican senators" and Senate Democrats is a rather unsettling thought, to put it mildly.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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