Does Secret NSA Wire-tapping Break a Deal With Congress?

I am not aiming to get into the political thicket surrounding the Program authorized by Pres. Bush. This Program, implemented by the National Security Agency (NSA) is for intercepting communications involving Americans and legal immigrants without warrants. There has already been plenty of talk about whether it is good or bad policy and there will be more.

Instead, I am concerned with the negotiation aspect of the Program. In 1978 Congress passed the Foreign Intelligence Surveillance Act or FISA. It is clear FISA was a result of a negotiation between Congress and the Executive branch. That deal was about what was workable, what objectives would be served, how the judiciary would be involved, and a host of other details. It was certainly not Congress making rules in a vacuum.

So we come forward from 1978 to the horrific events of 9/11/2001. From what we know, soon after that the President, Justice Department and NSA put together a plan of interceptions without applying to the special secret court for warrants. (Its operations are secret, but its existence is not) That is not the negotiated arrangement. Whether the President has authority under Article II of the Constitution to do this anyway is, again, for others to debate. So is the argument that the statute about invading Afghanistan implicitly authorized the Program.

So the Program may be fine and necessary, but it leaves questions about the negotiations leading to FISA in 1978. If an entity (here, the Executive branch) makes a deal with another entity (here, Congress), and over 20 or more years the individuals change, is the deal still in effect? Is it in effect until it is changed or one or the other tells the other it will no longer follow the deal?

Here, the President had his people brief eight members of Congress about the new Program. But those eight were barred by law (possible felony prosecution) from telling even other members of Congress that the deal was off.

Many members of Congress have expressed problems with the fact that FISA was apparently ignored (the deal was broken). I think there are more of those than have expressed concerns with alleged constitutional usurpation by the Executive Branch or general civil liberties issues. This could affect the President’s ability to negotiate with Congress the rest of his term.

Negotiation 101: What happens after the deal is made—whether people carry it out in good faith—may be more important than the terms of the deal itself.

Negotiation 101: When a deal is made between two organizations and it is intended to run a long time, people in both expect it to last after the negotiators leave.