The Real Reason the Administration Didn't Go to Congress

Ever since the domestic spying scandal broke, there have been two enduring questions: 1) why did the Administration bypass FISA, and 2) why didn't the Administration try to have FISA amended before doing so?

The answer to the first question has been more or less answered by the Administration: They wanted to engage in surveillance that would not have met even the low threshold required for a FISA warrant. So that just leaves the second question: why didn't the Administration go to Congress? After all, this was the same Congress that overwhelmingly passed the Patriot Act (which contained a number of important amendments to FISA) at roughly the same time the secret NSA program was initiated.

The Administration has offered two answers to this question. The first is the blunt answer provided by Dick Cheney: They have all the authority they need to do this, so why bother going to Congress. The slightly more diplomatic Alberto Gonzales has provided an alternative explanation: going to Congress to seek statutory authorization would likely have compromised the program. In other words, the process of proposing and debating the necessary amendments to FISA would have tipped off the enemy and undermined the effectiveness of the program.

I find neither of these explanations persuasive. I'm sure that there are people in the Administration (like Cheney) who strongly believe in John Yoo's radical theories of executive power, and I'm sure these people believe that going to Congress is unnecessary and would, in effect, be ceding executive power to the legislative branch. But the fact is the Administration has gone to Congress on multiple occasions, most notably in securing the passage of the Patriot Act in 2001. If the Administration was unwilling, as a matter of principle, to seek Congressional authorization for its terrorist-related surveillance practices, it never would have bothered with the Patriot Act and subsequent legislative proposals. Which means there's something about this program in particular that kept the Administration from going to Congress.

Could it be, as Gonzales contends, because going to Congress would risk compromising the program? This is a possibility I entertained when this scandal first surfaced. But the more I think about it, the less it makes sense to me. First, the administration has utterly failed to make the case that disclosure of this program has in any way damaged national security. Alberto Gonzales' lame suggestion that merely talking about surveillance reminds terrorists that we might be trying to listen in on them is, on its face, absurd. Second, legislation is very general. It provides standards and rules, not operational details. No one ever suggested that discussing the provisions of the Patriot Act or the DeWine amendment or any other proposed legislation risked tipping off our enemies. Surely any necessary amendments to FISA could have been debated and passed without revealing specific operational information.

So where does that leave us? Well, the assumption made by many of Bush's critics is that the Administration didn't go to Congress because Congress would not have approved of what they wanted to do. Some suspect that Bush is up to classic Nixonian spying on his political enemies. I actually doubt that this is the case (although, the lack of any judicial oversight does open the door to this sort of abuse). More likely is the suggestion that the program departs so significantly from the standards required by FISA, that the Administration just didn't think Congress would go along with it. In the negotiation process prior to the passage of the Patriot Act, the Administration was able to test the political waters. They made a number of proposals for changing FISA and other laws and experienced some pushback from Congress. They may have simply concluded, based on this give and take, that amending FISA to allow for this particular program was not politically feasible. Indeed Gonzales seemed to confirm this suspicion when he was first asked why the Administration didn't go to Congress. He said: "Well, we talked to some members of Congress, and they said it would be difficult, if not impossible, to get that additional authority." Gonzales later clarified that he did not mean to suggest that Congress would not have approved of the program, but merely that the process of seeking such authorization would have risked compromising the program.

But now the program has been exposed, and politicians from both sides of the aisle are expressing serious concerns over its legality. Moreover, both Democrats and Republicans in Congress have expressed a desire to work with the Administration to legalize the program, particularly if it is as important to the fight against terrorism as Bush claims it is. Yet the Administration is still stubbornly insisting that Congressional authorization is not only unnecessary, but undesirable. Why is this?

Well, my suspicion is that the Administration's primary concern has always been the courts, not Congress. You see, getting Congress to change the law solves one problem, but creates another. Any significant amendments to FISA are sure to lead to court challenges. The reason for this is simple: FISA, in its current form, already pushes up against the limits of the Fourth Amendment. When the Patriot Act liberalized a number of key FISA provisions in 2001, the constitutionality of the new-and-improved FISA was challenged via amicus briefs filed with the United States Foreign Surveillance Court of Review. The ACLU and NACDL argued that FISA, as amended, was unconstitutional because it gave the executive branch the power to conduct surveillance that did not meet minimum Fourth Amendment standards. The government defended the constitutionality of FISA and ultimately prevailed. In In re Sealed Case (yes, the very same case which Bush's defenders keep quoting entirely out of context), the Court of Review observed:

[W]e think the procedures and government
showings required under FISA, if they do not
meet the minimum Fourth Amendment
warrant standards, certainly come close. We,
therefore, believe firmly, applying the balancing
test drawn from Keith, that FISA as amended is
constitutional because the surveillances it
authorizes are reasonable.

In other words, FISA, as it stands, likely approximates what would be required by the Fourth Amendment anyway. That means that any significant amendment to FISA, particularly one which lowers the standard for securing a warrant, is likely to be of dubious constitutionality. The Administration itself conceded this point when it opposed the DeWine amendment in 2002, a proposal that would have lowered the standard under FISA from 'probable cause' to 'reasonable suspicion.'

Long story short, the Bush Administration may have been much more worried about the courts than Congress. If Congress had passed a law authorizing the program, it would have opened the door to a Fourth Amendment challenge, one with a good chance of succeeding. Rather than risk such an outcome, the Administration simply bypassed Congress and enacted the program on its own, in secret. With the rules and procedures which govern the program (assuming there are any) shrouded in secrecy--rather than codified in legislation--it is far more difficult for any private litigants to successfully challenge its constitutionality. I suspect that this, more than anything else, is why the Administration is so reluctant to have Congress rewrite the law. Doing so would make these standards public and, therefore, much easier to challenge.

One way or another, however, the legality of this program will eventually be litigated in court, and that litigation will almost surely reach the Supreme Court. I'm confident that when that day comes, the Court will have plenty to say about this episode in our history, and I highly doubt that Bush or his defenders are going to like what they have to say. Until that day comes, supporters of the rule of law and the separation of powers must continue to fight the good fight and remain confident that, sooner or later, they will be vindicated.