Shostack + Friends Blog Archive


On the NSA Wiretaps

One of the noteworthy aspects to the ‘NSA Wiretap’ revelations is how it has galvanized a broad swath of people, far beyond the “usual suspects” to state that the program was a mistake, and we need to function within the rule of law. For example, Suzanne Spaulding, former assistant general counsel at the CIA:

Before I worked on the intelligence committees, I was a lawyer at the CIA. We understood that congressional oversight was key to maintaining the trust of the American public, which is vital for a secret agency operating in a democracy. True oversight helps clarify the authority under which intelligence professionals operate. And when risky operations are revealed, it is important to have members of Congress reassure the public that they have been overseeing the operation. The briefings reportedly provided on the National Security Agency (NSA) surveillance program reflect, instead, a “check the box” mentality — allowing administration officials to claim that they had informed Congress without having really achieved the objectives of oversight. (From “Power Play” in the Washington Post.)

Victor Comras and Daveed Gartenstein-Ross discuss the wiretaps in “The President’s NSA Wiretaps: Unnecessary Problems in the War on Terrorism” and “Defense Challenges to NSA Wiretaps: Legal Issues” (respectively) at the Counterterror blog. This is interesting as CT is a collection of experts in the field, many of very long public service. By and large, they have seemed to be for more power, fewer restraints, and a “whatever it takes” to win. They have also tended to believe that a wide variety of legal frameworks should be expanded to reflect this approach.

They will be raised, countered, considered and appealed in the context of numerous past, on-going and future terrorism-related cases. The same issues will be aired publicly, in the media and in Congressional hearings. And these issues, and the arguments in these cases, won’t go away anytime soon. In fact, they are likely to cause considerable complications and delays in prosecuting and winning these cases. So, the question must be asked: Was the President’s decision to authorize such NSA wiretaps on his own, arguably on the basis of his own constitutional authority, and without regard to FISA, a mistake? The answer to this question follows, in large part from the answer to another question. Was such unilateral action really necessary?

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