Phone Spies

The Nation Editorial

The revelation that the National Security Agency has, since 2001, collected records of billions of phone calls made and received by Americans confirms the worst fears about the lawlessness of the Bush Administration. This President and his aides have displayed disdain for the rule of law and for the truth. Bush initially denied that the spying was taking place. Then when it was exposed, the Administration claimed that the spying was limited in scope. In light of what we now know, how can anyone trust the word of Air Force Gen. Michael Hayden--who as director of the NSA implemented Bush's spying program and who is now the President's nominee to direct the Central Intelligence Agency--when he claimed as recently as January that the domestic surveillance program was "highly targeted" and aimed only at "international communications"?

The Administration would seem to be violating the Fourth Amendment's protections against unreasonable government searches and seizures. There is also the matter of its disregard of the Foreign Intelligence Surveillance Act, which requires the government to obtain a warrant for electronic surveillance. By any measure Congress has sufficient grounds not just to investigate but to aggressively challenge the Administration's actions. After ABC News reported that the FBI has acknowledged reviewing phone records of reporters for that network and other outlets as part of an effort to identify whistleblowers, Congress also has a responsibility to demand information about just how much spying is taking place.

So far, however, Congress is speaking loudly but carrying a small stick. Republican Senate Judiciary Committee chair Arlen Specter complains that "there has been no meaningful Congressional oversight on this program," but where are the subpoenas from his committee to the officials engaged in these activities? Specter says he wants to ask phone company executives about what records they turned over to the NSA and why. But the senator has to know that the fundamental questions can only be answered by an investigation of an Administration that cannot be allowed to plead executive privilege. Democrats also have to get over their timidity. Isn't it time, for instance, for its leaders to acknowledge that Democratic Senator Russ Feingold was right when he proposed in March that Bush be censured for ordering the NSA to eavesdrop on Americans' phone conversations without obtaining proper warrants?

The Democrats have a new chance to pressure the Republican leadership to act by supporting Representative Maurice Hinchey's push for the reopening of the Justice Department inquiry into who authorized the spying programs--an investigation that was ended May 9, on the eve of the latest revelations about the NSA, supposedly because needed security clearances had been denied. Hinchey wants to know: Who in the DOJ first authorized the domestic surveillance program? What was that official's justification for doing so? Had the Bush Administration already enacted the program before getting DOJ approval?

Equally vital are questions about what the NSA has done with information obtained from its review of all those billions of phone records: What are the standards for making the leap from data-mining to eavesdropping? How many times has that leap been made? With what agencies have data been shared? What, if anything, has been done with that information? These are questions that cannot be answered by telephone company executives, and perhaps not even by General Hayden. We need a get-to-the-bottom-of-it investigation.

Democrats must start the process by explaining to Americans that it is not merely possible to keep Americans safe and free--it is necessary.
The message must be that obeying the rule of law is not an obstacle to national security but an asset. Only by playing by the rules will the government be viewed at home and abroad as acting legitimately. And it is now all too clear that the Bush Administration has not been doing so.