Government's Domestic Eavesdropping Operations Constitutional, Eastman Says

March 6, 2006


"You have to have a government that can act with secrecy and dispatch to withstand threats to it both domestically and from abroad," said Chapman University law professor John Eastman.

President George Bush has the constitutional power to conduct domestic wiretaps, but if he abuses that power, political pressure-not legal restrictions-will offer a check on the administration's surveillance activities, said Chapman University law professor John Eastman at a Federalist Society talk Feb. 28 at the Law School.

An information leak published by the New York Times in December connecting President Bush to domestic communication surveillance efforts sparked a national debate over whether wiretapping conversations between domestic and foreign callers without a warrant was legal.

"The notion that you can't conduct surveillance on enemy communication in a time of war because it's not considered an incident of war is really a preposterous claim," Eastman said. "You have to have a government that can act with secrecy and dispatch to withstand threats to it both domestically and from abroad."

Eastman praised the founding fathers for equipping the United States with a government that could deal with the problems faced during war while still protecting the liberties of its citizens. The intentional ambiguity incorporated into the Constitution allows the president to fight the war with whatever means necessary while giving the people a broad interpretation of the law and the ability to hold the executive power accountable, he argued.

"This initial conundrum that our founding fathers faced-how to create a government strong enough to provide security that can't become so strong that it will itself undermine liberty-this ambiguity is the best solution ever devised," Eastman said.

The War on Terror hinges on intelligence, Eastman noted, and the exposure of the surveillance program was detrimental to the U.S. military strategy.

"What happened in December, in my view, is tantamount to the New York Times, two days before D-Day, publishing our troop movements and landing sites because in this asymmetrical war we're in, the most critical battlefield, the central front, is information, is intelligence, and we're not going to win this war no matter how many troops we send over to Afghanistan and Iraq if we don't win the intelligence front as well," Eastman said.

The New York Times and whoever leaked information on the domestic surveillance program committed a treasonous act, according to Eastman, because it gave aid and comfort to the enemy. However, they won't be prosecuted for treason, Eastman added, because of the political consequences the administration would face for doing so. Intelligence gathering efforts have been devastated because the terrorists now know that the U.S. government is listening in on their conversations, he said.

Since the information leak, the U.S. Department of Justice and the Congressional Research Service have both released reports with opposing legal arguments for the program. The Congressional Research Service, known for its "neutral assessment" of issues, produced a "shoddy" analysis of Bush's surveillance efforts, Eastman said. On the other hand, the DOJ's report was a "neutral, scholarly assessment," of the situation, unlike their typical reports advocating for the executive branch.

Critics claim that Bush is violating the Foreign Intelligence Surveillance Act (FISA), which requires that the president obtain a warrant from a FISA court before pursuing any domestic wiretapping activities. If a warrant cannot be obtained before the observation, the government has a 72-hour window after the fact to justify its actions. Eastman responded that the FISA Act of 1978 was designed to regulate long-term surveillance activities and requires extensive paperwork for each wiretap.

"Even in the 72-hour applications, we're talking about days, a couple of days, of putting together a formal application that runs into the hundreds of pages with the various thresholds of proof that are required by FISA, and it's a standard of proof that might well be appropriate in the long-term surveillance, and it's certainly a standard of proof that we want to insist on for criminal prosecution, but, it's a standard of proof that makes no sense in the quick timing of the conduct of war," Eastman said. If a cell phone is recovered from a terrorist, for example, the government could trace all of the phone numbers that have gone in and out of that cell phone, then track calls to and from those numbers. But through requiring a formal application for each of those numbers, FISA inhibits the ability of the government to get this information and use it to stop further terrorist destruction, he said.

It is "laughable" to expect the president to conduct war surveillance under such bureaucratic restrictions. Besides, Eastman said, the FISA Act allows the president to order wiretaps if "otherwise authorized by law."

The president received such permission from Congress through the Authorization for Use of Military Force Against Iraq, enacted after the 9/11 attacks to give the president the power to bring terrorists to justice and prevent future attacks. Furthermore, Article II of the Constitution inherently gives the president the power to supersede FISA regulations, Eastman argued. Article II states, Eastman said, that "the executive power shall be vested in the President of the United States', all of it, whatever it is that fits under the definition of executive power is given to the president, unless otherwise limited in the Constitution".

"Herein is, I think, the brilliance of it. We've given the executive all the tools he needs to [do] the job, but we've also given us lots of ways to call him to account if he starts abusing those tools and does things other than the job we've asked him to do." If Bush begins abusing this power by listening in on the conversations of political opponents, for example, the people have the power to hold him accountable through the threat of impeachment.

Eastman predicted that Bush will continue to eavesdrop on enemy communications despite debate on whether it is constitutional, with the knowledge that if he abuses that power, he could face political consequences.

"That's exactly where we should be. We get the security for our liberties and we get the security for ourselves as well in this situation," he said.

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