Thursday, Feb. 09, 2006

Twin Mysteries of Warrantless Wiretapping

TIME's Michael Duffy examines two unknowns surrounding the president's eavesdropping actions--solving these mysteries may be the key to Bush’s defense

By MICHAEL DUFFY

Lawyers like to say if you don't have the facts, argue the law. And that may be as good a way as any to understand the latest developments in the Bush administration's controversial "terrorist surveillance" program. Perhaps administration officials have now quietly demonstrated to lawmakers behind closed doors on Capitol Hill that its warrantless wiretapping has yielded valuable national security tools and tips. It may be days before we know for sure. While we wait, here are a couple of mysteries that well-informed lawyers who have worked in the murky world of secret snooping say are worth exploring.

1. So, what did the U.S. learn?

What plots were foiled, what leads were obtained, what links were unveiled as a result of these warrantless searches? If the government can show that the snooping kept Americans safe and sound, this controversy will disappear quickly. But it hasn't taken that approach—yet. The administration so far responds to every inquiry about how the new snooping works—and how well it works—with a firm refusal to get into what it calls "operational details." The President tried to argue the facts a bit today, suggesting almost obliquely that his administration's no-quarter prosecution of the war on terror helped foil a plot on a Los Angeles skyscraper. But he stopped short of saying the breakthrough was based on the NSA snooping. The facts of the case, so far at least, remain unargued in public.

2. What did the U.S. collect in what it calls the terrorist surveillance program that it could not have collected had it obeyed the FISA procedures?

Even Americans who had not heard of the FISA court three months ago now know that the government can start wiretapping someone tonight and still wait to ask the court for permission for another 72 hours. So what did it need that FISA wasn't permitting? The answer, most people believe, is about the law and goes to what the lawyers call the "triggers."

Under FISA, the spooks needed to show "probable cause" to a secret court before they attached bugs to a suspect's phone lines. All indications are that, under the post-9/11 program, a softer legal trigger was used. How much softer? That's an explosive legal and political mystery. Michael Hayden, the former NSA head who has taken a public role in defending the program but who is not a lawyer, has implied that the NSA officers who were manning the spotter desks had to have a reason to believe that a terrorist plot might be in the works. But Gonzales, who will no doubt have to defend his government's actions in court someday, tried to argue that a "reason to believe" was the same as "probable cause." Is it? Or is it that, as someone who has worked in both the judiciary and intelligence branches told me this morning, "There is no such thing as probable cause lite."

Put another way, in the case of the warrantless wiretapping, there is the mystery of the facts, and the mystery of the law. Neither has been solved. If we are heading to court, the Bush team will argue both if it can. But it so far does not see a need to argue either.

Copyright © 2006 Time Inc.

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