Congress Likely to Authorize Electronic Eavesdropping

The release of the latest Osama bin Laden’s tape last week declaring that preparations for another attack against the United States are under way has apparently motivated Congressmen of both parties to advocate loosening the laws on electronic eavesdropping.

U.S. surveillance laws should be reviewed and possibly rewritten to allow the type of eavesdropping that U.S. President George W. Bush has been criticized for authorizing, lawmakers from both parties said on Sunday.


An audio tape by Osama bin Laden that emerged last week threatening new attacks on the United States has heightened security concerns. Neither party can afford to be seen as failing to protect the country, particularly as corruption scandals and public questioning of the Iraq war loom over November’s congressional elections. Lawmakers on several Sunday talk shows said that if the Foreign Intelligence Surveillance Act (FISA) does not give Bush the tools and legal framework he needs to monitor potential threats, the president should ask Congress to change the law rather than bypass it.

Massachusetts Democrat John Kerry, who endorsed former Vice President Al Gore’s call for an independent investigation of the Bush program, said on ABC’s “This Week” that some Republicans like Bush adviser Karl Rove are trying to equate Democratic opposition to warrantless spying as weakness. “What he’s (Rove) trying to pretend is somehow Democrats don’t want to eavesdrop appropriately to protect the country. That’s a lie,” Kerry said. “We’re prepared to eavesdrop wherever and whenever necessary in order to make America safer.” But Kerry said the spying has to be legal and constitutional and if Bush needs the law to be changed, “then come to us and tell us… There is a way to protect the Constitution and not go off on your own and violate it.”

Other prominent Democratic senators including Dick Durbin of Illinois, Charles Schumer of New York and Joseph Lieberman of Connecticut made similar comments about reexamining the breadth and modernity of FISA in television interviews a few days after Rove urged Republicans to campaign on national security and the war on terror.

Arizona Republican Sen. John McCain, who has also questioned the legality of the eavesdropping, also urged the administration to work with Congress on modernizing the 1978 FISA law to take into account technological changes in communications. “I know of no member of Congress, frankly, who, if the administration came and said here’s why we need this capability, that they wouldn’t get it. And so let’s have the hearings,” McCain said on Fox News Sunday.

While I agree with the basic Kerry-McCain stance–that the president should have gotten approval from Congress on this–they are both applying selective memory. The number of Democrats, especially, who were arguing against the program per se rather than simply on separation of powers grounds when it broke was sizable. Further, Tom Daschle has claimed that the president sought authorization after 9/11 and was rebuffed.

Adam Nagourney correctly frames the terms of the debate, which the White House seems to be winning at the moment.

[A]s the White House and Democrats are well aware, the issue can draw very different reactions depending on how it is presented. These next few days could prove critical, as both Mr. Bush and Congressional Democrats move aggressively to define what is at stake. Americans may be willing to support extraordinary measures – perhaps extralegal ones – if they are posed in the starkest terms of protecting the nation from another calamitous attack. They are less likely to be supportive, members of both parties say, if the question is presented as a president breaking the law to spy on the nation’s own citizens.

The next step in presenting this as a vital tool against the terrorists is a series of key speeches which kicks off today:

President Bush plans to defend the program in a counterterrorism speech today at Kansas State University, aides said. The speech will kick off a flurry of administration activity leading to Senate hearings scheduled for Feb. 6. “We are stepping up our efforts to educate the American people about this vital tool in the war on terrorism,” White House spokesman Scott McClellan said.


Just before Bush’s speech today in Manhattan, Kan., Gen. Michael Hayden plans to discuss the surveillance program at the National Press Club. Hayden, the principal deputy director of national intelligence, once headed the National Security Agency, which conducts the surveillance. Attorney General Alberto Gonzales is scheduled to address the issue in a speech Tuesday, McClellan said. On Wednesday, the president plans to visit the NSA headquarters at Fort Meade in Maryland.

If these speeches dotheir job, the president’s opponents are going to be very reluctant to make too much of the program. Even if he was not technically authorized to launch the program, Democrats do not want to be painted as weak on fighting terrorists.

Related stories below the fold.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Herb says:

    Isn’t it strange that Kerry, Durbin and the rest of the anti evesdrop democrats are now saying it is OK, Especially after polls indicate that most Americans agree with the evesdroping that Bush authorized.

  2. legion says:

    What exactly does it matter if Congress authorizes it or not, when the Pres says he’ll do it whether or not it’s “legal”?

    And btw, Herb, people only agreed (by a razor-thin margin, at that) with the general concept of tapping suspected terrorist sympathizers/supporters. The thing “most Americans” strongly _disagree_ with is doing it in direct contravention of existing laws. But then, see my first paragraph…

  3. RA says:

    The President is within his legal rights to eavsdrop on suspected terrorist phone calls. The game the Democrats are playing is to give him permission to eavsdrop. In the future they will claim they gave Bush the right to eavsdrop and can take that right away by legislating.

    In fact they cannot stop Bush because he is constitutionally allowed to do this. This is nothing but an attempted power grab by the congress of constitutional executive power.

  4. legion says:

    What you state as fact is actually very hotly contested in legal circles. What is in question is _not_ whether or not “Bush” (actually the Executive branch in general) has the right to eavesdrop, the question is whether the President’s role as Commander-in-Chief allows him to circumvent specific laws regarding _the way that eavedropping takes place_.

  5. Anderson says:

    “Suspected terrorist phone calls.” You’ve really been paying attention, RA.

    The causal connection (Osama tape —> let’s have more eavesdropping) is very odd. Is Osama running the U.S. gov’t now?

    At any rate, I’m all for increasing our surveillances powers as needed, provided that *some* sort of oversight is maintained. This should be possible. A “data mining” or somesuch operation could have its parameters approved by the FISA court, and that court could be required to sign off on any consequent surveillance of particular individuals.

  6. Anderson says:

    And as Kevin Drum points out, it appears from the NSA’s own statements that it’s NOT some hi-tech data-mining that’s at issue here.

    It’s just that NSA doesn’t want to adhere to the Fourth Amendment’s “probable cause” standard. Read Drum’s post, & the NYT article he links (the WaPo is more useless than usual), if you care about this issue at all.