Senior Bush administration officials told Congress on Tuesday that they could not pledge that the administration would continue to seek warrants from a secret court for a domestic wiretapping program, as it agreed to do in January. Rather, they argued that the president had the constitutional authority to decide for himself whether to conduct surveillance without warrants.
As a result of the January agreement, the administration said that the National Security Agency’s domestic spying program has been brought under the legal structure laid out in the Foreign Intelligence Surveillance Act, which requires court-approved warrants for the wiretapping of American citizens and others inside the United States.
But on Tuesday, the senior officials, including Michael McConnell, the new director of national intelligence, said they believed that the president still had the authority under Article II of the Constitution to once again order the N.S.A. to conduct surveillance inside the country without warrants.
Mr. McConnell emphasized that all domestic electronic surveillance was now being conducted with court-approved warrants, and said that there were no plans “that we are formulating or thinking about currently” to resume domestic wiretapping without warrants.
“But I’d just highlight,” he said, “Article II is Article II, so in a different circumstance, I can’t speak for the president what he might decide.”
On Sunday, we learned that the FISC had twice refused the Administration a subpoena, once in March and once in May.
But in a secret ruling in March, a judge on a special court empowered to review the government's electronic snooping challenged for the first time the government's ability to collect data from such wires even when they came from foreign terrorist targets. In May, a judge on the same court went further, telling the administration flatly that the law's wording required the government to get a warrant whenever a fixed wire is involved.
Which mean this attempt to reclaim Article II authority as justification for warrantless wiretapping necessarily came after the first ruling against the program (it probably came before the second, since the hearing came only two days into May). McConnell claimed, at the time, that the Administration was still doing working through the court. But were they preparing to evade the court, knowing that it had found part of the program illegal?