Chicago Tribune Editorial - Spying and politics

Chicago Tribune Editorial - Spying and politics
Copyright © 2007, Chicago Tribune
Published July 14, 2007

You may have thought that the whole complicated legal and political brouhaha surrounding the Bush administration's secret domestic eavesdropping was largely resolved. It sure seemed that way.

In January, the administration ceded ground to critics. Atty. Gen. Alberto Gonzales declared the Justice Department had reached a deal for court oversight of the program, which allows the feds to intercept communications between people in the U.S. and individuals abroad who are suspected of terrorism links without first getting a warrant.

But case closed? Hardly.

The administration says that oversight by a special court has limited the intelligence that agencies can collect. It has proposed new eavesdropping powers, and it has stonewalled demands from Congress for more information on the existing program.

"We are actually missing a significant portion of what we should be getting," Michael McConnell, the director of national intelligence, said in congressional testimony. McConnell asserted that the law should be revamped to respond to dramatic changes in communications technology used by intelligence targets in this country. The White House has proposed to expand the power to spy on foreigners in the U.S. who are suspected of having links to terrorist activities. It also wants to provide retroactive legal cover to telecommunications companies that aided the government with such information as phone and e-mail records.

Many in Congress have been skeptical or downright hostile to changes. Last month, a Senate committee investigating the wiretapping program subpoenaed the White House and the Justice Department, seeking their legal justification for the program. The administration has so far stiff-armed Congress.

Meanwhile, in the courts, opponents of the program have suffered a setback.

A federal judge in Detroit ruled last year that the spying program violated federal law and the Constitution. She bluntly rebuked President Bush, declaring that "there are no hereditary kings in America."

The appellate court tossed that decision, though. The higher court said the plaintiffs in that case, including lawyers and journalists, could not sue because they couldn't show that they had been directly harmed by the wiretapping program.

They couldn't show harm because they couldn't produce any hard evidence that any of their communications had ever been intercepted by the National Security Agency, which runs the surveillance program. There is a weird Catch-22 logic to this: You can't sue unless you can show you've been wiretapped. But you can't prove it because that information is protected by law as a government secret. That ruling suggests ongoing court challenges face a steep climb.

So the future of the program is likely to be resolved in Congress.

Such surveillance programs are vital to national security in the murky age of terrorism. But it is essential to retain court oversight of domestic spying efforts that could, if left unchecked, infringe on civil liberties. That will be the key to any changes sought by the administration. If oversight has hampered the program, the Bush administration needs to make that case convincingly to Congress. The administration won't get far in that regard by withholding information from the people it needs to convince.