Harvard Prof Heats Up Debate on Domestic Spying

Many politicians and legal scholars have questioned the legality of the warrantless domestic spying program run by the National Security Agency (NSA), asserting that it may violate the 1978 Foreign Intelligence Surveillance Act (FISA), which places strict limits on domestic eavesdropping without a warrant.

Over the past six weeks, the Bush Administration has struck back, vociferously defending the program’s legality and necessity, and hinting that those who oppose the program would be painted as weak on national security.

Among those who have weighed in on the domestic eavesdropping controversy are Harvard’s Ames Professor of Law Philip B. Heymann and Appellate Court Judge Richard A. Posner, a professor at the University of Chicago. The debate between the two well-known scholars, which took place on the pages of a left-of-center magazine, The New Republic, incorporated questions of both legality and proper policy, with Posner concerned more with the program’s merits and Heymann with its conformity to the FISA statute.

The program, which has faced criticism from lawmakers on both sides of the aisle, takes center stage today as Attorney General Alberto R. Gonzales, a Harvard Law School (HLS) alum, testifies before the Judiciary Committee in an attempt to mollify lawmakers’ criticisms.

THE STORY BREAKS

The NSA had been intercepting telephone calls and e-mails between Americans and al Qaeda operatives under a 2002 executive order, The New York Times reported on Dec. 16, 2005.

The Times quoted officials as saying that “the NSA eavesdrops without warrants on up to 500 people in the United States at any given time,” compared to 5,000 to 7,000 overseas.

The NSA program was never kept entirely under wraps. Congressional leaders had been made aware of the program soon after it began and the Justice Department reviewed the program internally in mid-2004.

Sen. John D. Rockefeller IV ’58-’61, the vice chairman of the Senate Intelligence Committee and one of the few lawmakers who at the time questioned the legality of the program, wrote a handwritten letter to the vice president in July 2003 expressing his unease.

“Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own,” Rockefeller wrote, “I feel unable to fully evaluate, much less endorse these activities.”

THE LEGAL DEBATE HEATS UP

In response to the Times article and to head off a potentially sticky situation with Congress, the Justice Department wrote a letter to Congressional leaders less than a week after the story broke defending the program’s legality.

“The purpose of the intercepts is to establish an early warning system to detect and prevent another catastrophic terrorist attack on the United States,” William E. Moschella, an assistant attorney general, wrote for the administration. “[I]n his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks.”

The letter continued that the president’s constitutional authority as commander in chief authorizes warrantless domestic spying and this authority is supplemented by Congress’ Authorization to Use Military Force (AUMF).

Any legislative alteration to FISA would have “tipped off” terrorists as to the administration’s counterterrorism strategy, Moschella concluded.

In response to the Justice Department’s defense of the program, a group of 12 prominent law professors—including Heymann, HLS’ Laurence H. Tribe, and two other professors with strong ties to the University—wrote a letter on Jan. 9 to Congressional leaders in which they attempted to punch holes in the administration’s legal reasoning. (See article here.)

The professors attacked the administration’s two principal claims: that the president’s authority as commander in chief permits him to authorize warrantless wiretapping and that AUMF implicitly authorized domestic spying. The professors also argued that the eavesdropping program could violate the Fourth Amendment’s prohibition on unreasonable searches and seizures.

BEYOND THE ‘ARIDLY LEGAL’

While most of the controversy has centered on the legality of domestic eavesdropping, Posner and Heymann also focused their debate on the program’s merits and how its merits relate to its legality.

The debate began when Posner, an HLS alum, critiqued the letter authored by the 12 professors as overly reliant on legalistic arguments.

“[T]here is something odd about the debate,” Posner wrote. “It is aridly legal.”

Assessing the importance of the program as a tool for counterterrorism would make it easier to ensure its legality, Posner continued.

He concluded that FISA is outdated, and that by perfecting the domestic spying program—so that authorities could only use the information in the pursuit of terrorism and not other crimes—the program would also be wise policy.

In a testy response, Heymann defended his questioning of the program’s legality, writing that the real issue is not an abstraction but that the president acted in “defiance of legislated prohibitions and [in] the absence of published standards and any known system of accountability.”

He went on to say that Posner was “defending a standardless, secret, unaccountable system,” one that “clearly violates a carefully considered statute.”

Heymann, who focused more on the lack of safeguards built into the program than on the merits of the program itself, concluded that “published standards for any investigative step do not necessarily provide any useful information to terrorists” and that “there are far better ways to reduce the threat” of terrorism than to support every program that marginally reduces the risk of an attack.

THE COMMITTEE HEARINGS

As part of the administration’s public relations offensive and its efforts to mollify congressional concerns, Gonzales agreed in mid-January to testify before the Senate Judiciary Committee.

The sharpest questioning during the hearings will likely come from Sen. Russel D. Feingold, D-Wis. Feingold, a fellow HLS alum, who is angry about what he considers misleading testimony from Gonzales during the attorney general’s confirmation hearing.

During the hearing Feingold had asked Gonzales if the president, as commander in chief, could “authorize warrantless searches of Americans’ homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country.” Gonzales, who knew of the NSA program’s existence as White House counsel, denied that the administration was engaging in any illegal wiretapping and that they were discussing a “hypothetical situation.”

In a tersely-worded letter, Feingold asked Gonzales to “be prepared to discuss” his previous testimony, writing that “[i]n light of recent revelations that the President specifically authorized wiretapping of Americans and did so years prior to your confirmation hearing, I find [your] testimony misleading, and deeply troubling.”

“I will expect a full explanation at the hearing,” Feingold wrote.

—Staff writer Paras D. Bhayani can be reached at pbhayani@fas.harvard.edu