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Jewish World Review Jan. 12, 2006/ 12 Teves, 5766

Nat Hentoff

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Warrantless spying: Which side are you on? | The Justice Department is right to open a criminal investigation into the leaking to The New York Times of the National Security Agency's warrantless surveillance program, because this was highly classified information. But in this test of national security, the First Amendment and the responsibility of the free press to monitor the Constitution, Alberto Gonzales should recuse himself from the investigation because he was counsel to the president when the president signed the order permitting the NSA's far-flung actions and was involved in the decision.

Moreover, since the news broke, and keeps on breaking, Gonzales has been one of the chief defenders of the president's further unleashing of the NSA. This cheerleading hardly inspires confidence that the attorney general will not have already reached his conclusions.

Also, with the Senate conducting its own investigation, there is White House pressure to move that inquiry from Arlen Specter's judiciary committee to the intelligence committee. But the latter's chairman, Pat Roberts, R-Kan., is so indifferent to Fourth Amendment privacy protection that he supports giving the FBI the power, through administrative subpoenas, to seize extensive personal data from Americans not involved in any criminal acts. There is no judicial review of those subpoenas.

Whoever is in charge of the inquiry should call, as a witness, James Comey, who was an effective federal prosecutor of terrorists. In 2004, while Attorney General John Ashcroft was hospitalized with pancreatitis, Comey refused to sign off on certain expansive surveillance operations of the NSA authorized by the president because he was not sure they were legal.

The investigating committee should also squarely confront the repeated claim by the president's defenders that in November 2002, the Foreign Intelligence Surveillance (FISA) Court of Review strongly upheld the president's assertion that his "inherent powers" justified his warrantless extension of the NSA's powers. Said this FISA appellate court: "We take it for granted that the president does have that authority, and assuming that it is so, the Foreign Intelligence Surveillance Act could not encroach on the president's power," adding that all other courts ruling on this issue had agreed.

But this taking for granted of the legality of what we now know, so far, of the vast data-mining that the NSA has engaged in by presidential order, has not been tested by the Supreme Court. If these presidential powers delegated to the NSA are settled law, why did an FISA judge, James Robertson, resign from the secret court in protest against George W. Bush's spying program over Americans in and out of the country?

The Dec. 21 Washington Post reported that "Two associates familiar with (Robertson's) decision said Tuesday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable."

Moreover, Robertson was not the only member of the FISA court with serious concerns that the president had gone too far. In a front-page Dec. 22 story, The Washington Post reported: "Several members of the Foreign Intelligence Surveillance Court said in interviews that they want to know why the administration believed secretly listening in on telephone calls and reading e-mails of U.S. citizens without court authorization was legal. Some of the judges said they are particularly concerned that information gleaned from the president's eavesdropping program may have been improperly used to gain authorized wiretaps from their court."

Also worth exploring is the president's repeated assertion that he consulted with key members of Congress on all of this, and, so, they provided oversight. But in a Dec. 29 letter printed in The Wall Street Journal, Sen. Russ Feingold, D-Wis., addressed whether the president had indeed been faithful to the constitutional separation of powers: "Informing a handful of congressional leaders who are prohibited from discussing what they have been told is not oversight, and congressional inaction under these extraordinary circumstances is not approval ..."

And, as for the president citing "stringent presidential review" of the program, a Jan. 1 letter in The New York Times from Jeremy Barth notes: "the president is not a neutral magistrate, and the Fourth Amendment does not contemplate the executive branch as a check or balance upon itself."

Congress must remember that the Constitution has not been suspended, and its members do have crucial oversight responsibilities, especially in this administration.

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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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