Warrantless searches need court hearing
5 former judges on an intelligence court have testified it should have oversight over eavesdropping without warrants.
PRESIDENT Bush's decision to bypass the nation's most secretive court in permitting domestic surveillance without warrants still stands without congressional authorization or U.S. Supreme Court approval. Some way must be found to subject the wiretapping to legal scrutiny.
Five former judges on the Foreign Intelligence Court told the Senate Judiciary Committee last week that they were skeptical about the president's constitutional authority to eavesdrop on communications of people inside the United States believed to be linked to al-Qaida. They asked that the court, created by Congress in 1978, be given formal oversight over the National Security Agency practice.
None of the judges had been aware of the program until it was disclosed by The New York Times. One of the five resigned from the intelligence court in frustration.
The committee is considering a proposal by its chairman, Sen. Arlen Specter, R-Pa., that the court be allowed to rule on the program's legitimacy. Bush maintains that the 2001 congressional authorization to use force against al-Qaida permits the warrantless searches.
The American Civil Liberties Union and the Center for Constitutional Rights have filed lawsuits on behalf of journalists, lawyers and others challenging the practice. However, the organizations may not have standing in such cases because they will be unable to prove that their clients have been targeted by the wiretapping.
Sen. Charles Schumer, D-N.Y., has introduced a bill that would allow lawsuits by scholars, journalists and others claiming that they have refrained from calls or e-mail messages from the Middle East because of "reasonable fear" of the eavesdropping. His bill would set up a panel of three judges whose decision could be appealed directly to the Supreme Court.
However, the Republican-controlled Congress appears to be unwilling to forge a way for a court challenge to be heard. If they are confident that the program is constitutional, they should welcome such a challenge.
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