CNN senior legal analyst Jeffrey Toobin investigates the National Security Agency's new spy program on "American Morning"

January 31st, 2006

Jeffrey Toobin, Ensor: Look for political solution on wiretaps

(CNN) — The White House has begun a new push to justify a controversial domestic spying program that allows the National Security Agency to eavesdrop on conversations to or from the United States without obtaining a court warrant.

Attorney General Alberto Gonzales defended the procedure in a speech Tuesday, and President Bush will visit the secretive agency later this week. But many Democrats and some Republicans, including Sen. Arlen Specter, the Senate Judiciary Committee's chairman, question whether the White House could order domestic spying legally.

CNN senior legal analyst Jeffrey Toobin and national security correspondent David Ensor discussed the legal and political arguments Tuesday with CNN anchor Miles O'Brien on “American Morning.”

O'BRIEN:

First, let's listen to the attorney general just a little while ago. (Video of Alberto Gonzales: “I would challenge anyone who is saying that to look at the analysis of the Supreme Court in the Hamdi decision regarding their interpretation of the authorization to use military force. And what they say that authorization allows the president to do, which is to engage in all activities that are fundamentally incidental to waging war. And engaging in electronic surveillance of the enemy is a fundamental incident of waging war.”)

O'BRIEN:

[He says] a fundamental incident of waging war. Now, it doesn't spell it out, but it doesn't say you can't do it. [It] seems a little vague to me.

TOOBIN:

It is a little vague. And the administration's problem is though they have vague authorization for waging war either in the Hamdi decision or in the authorization granted to the administration by Congress after 9/11 to attack Afghanistan.

The problem is there's this law called FISA, the Foreign Intelligence Surveillance Act, which specifically addresses exactly the activity that is at issue here — wiretapping phone calls from the United States to a foreign country or vice versa from the foreign country to the United States.

And that specifically calls for going to this court and getting a warrant. That's what they seem to be trying to get around, and I think the consensus view is, although it's not 100 percent, is that the administration's position here is pretty weak.

O'BRIEN:

It is clear it is a get-around FISA. We're going to talk a little bit more about that, but I want to bring David in here because yesterday I was fascinated by Gen. Mike Hayden, who at one time headed NSA [and] still remains one of the nation's top spies. He had a long and rather contentious Q&A where he was defending this program as best he could without violating, you know, security clearances and so forth. But listen to this one point he made here. (Video of Hayden: “Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States, and we would have identified them as such.”

O'BRIEN:

All right, let me ask you this, David. I read the 9/11 commission report. I thought we had identified some of the 9/11 conspirators. We just weren't able to connect the dots and paint the picture. When the general says that — should we just take that at face value? What do you think?

ENSOR:

Well, he says it's the case, and he's an expert on signals intelligence, so it certainly has some weight to it. But, you know, if the administration wants to make that argument, they're probably going to have to come up with a little more evidence, and the problem is all of this is so secret that it's very difficult for them to do that.

O'BRIEN:

It's a bit of a conundrum, isn't it?

ENSOR:

Yes.

O'BRIEN:

But when they say that … we could have stopped 9/11, I mean, it's difficult to — how do you respond if you don't have those clearances, you know?

ENSOR:

Well that's the problem. All of this is so top secret that they've had to very carefully frame their arguments to be able to say something publicly in favor of them. And it's a problem for Hayden, it's a problem for anyone who wants to talk about this, including us.

O'BRIEN:

All right, listening to — go ahead, you want to pick up?

TOOBIN:

I just think the fundamental issue here is this is much more political than it is legal or even national security at this point, because there is not going to be a definitive resolution.

You know, Arlen Specter says it's not authorized. The president says it is authorized. There is no case before the Supreme Court, and there's unlikely ever to be a case before the Supreme Court because there is no individual who knows he was tapped who can file a lawsuit. So the question is really, does Congress get upset about this? Does the president successfully defend it? But in terms of a definitive judgment, we're just not going to get one.

O'BRIEN:

Here's the thing on the FISA courts, Jeff. In Listening to Gen. Hayden yesterday, it has a provision where you can tap somebody right away and then within 72 hours, go see a judge and get it signed, sealed and delivered.

The concern is that some of these taps don't meet the level of probable cause, in other words, wouldn't rise to the bar of getting in court in the first place. They're reasonable, and that is where there's a lot of judgment made by people, shift supervisors at the National Security Agency. Is that [an] admission that they're circumventing the law?

TOOBIN:

Well, it seems to be. And Congress passed the law in 1978 because they didn't want wiretapping unless there was the level of suspicion specified in the law. Congress could have — I mean, the administration could have gone to Congress and said, “You know, we think it's important, we need to change the law.” … They could have asked for this then. They didn't, which … I think damages their position.

O'BRIEN:

All right, final thought, David Ensor. One of the other things the general said yesterday, essentially he said, “Look, these are people like you and me who work at the NSA. They're good Americans, they hold very dear the Constitution, particularly the Fourth Amendment, which is applicable in all of this. You got to trust us.” You know these people. Should we trust them?

ENSOR:

You know, on balance, they're good people. I've met a lot of the people who work at the NSA and who do this kind of work, and they're admirable Americans.

The problem is though our system of government says that there are supposed to be checks and balances. And the question will be whether or not a judge or a court shouldn't at least have some kind of oversight of this program.

Even those, the lawyers that I've talked to privately in the government who worked on the government's arguments for this will privately tell you they expect the FISA law to be amended, and they expect this kind of surveillance to probably be brought under it when all the smoke and fire dies down.