Harman on warrantless wiretaps

Daily Breeze -- Letter to the Editor

            I regret that, even after a careful conversation with a Daily Breeze reporter and editors this week, my position on warrantless wiretapping continues to be misunderstood (“Harman may not be taking on wider wiretap issues,” May 5, 2009).

            Let me be crystal clear:  I do not and never have supported warrantless wiretapping on Americans.  As Ranking Member on the House Intelligence Committee, beginning in 2003, I received a number of highly classified briefings on the operational details of what became publicly known as the Terrorist Surveillance Program (TSP).  While I cannot divulge the details of such briefings and was unable to discuss them with anyone at the time, we were always told that the program complied with the law.

            As soon as The New York Times revealed the existence of the TSP and President Bush discussed it publicly on December 17, 2005, I was free to consult with constitutional scholars and quickly determined that his Administration was operating the TSP outside of the Foreign Intelligence Surveillance Act (FISA).  On December 21, 2005, I expressed concern that the program’s contours were far broader than we had been told and that “we must use all lawful tools to detect and disrupt the plans of our enemies; signals intelligence and the work of the NSA are vital to that mission.  But in doing so, it is also vital that we protect the American people’s constitutional rights.”

            FISA became law when I was a young attorney in the Carter White House in response to the excesses of the Nixon Administration.  It was designed to protect the Constitutional rights of any American involved in surveillance, and specifically requires an individualized warrant whenever the content of an American’s communications is intercepted.

            It is true that I contacted The New York Times in 2004, and urged them not to report on the TSP.  I did so because of my fundamental objection to the leaking of critically sensitive national security information.  As many readers know, the selective leaking of classified information was elevated to an art form by President Bush and his national security team – the Valerie Plame incident being perhaps the most egregious example.

           The revelations that the Bush Administration operated the TSP outside of FISA, that WMD intelligence was selectively leaked and cherry-picked prior to the Iraq war have made me a much more careful legislator and consumer of intelligence products.  I always ask detailed questions about the sourcing of threat reporting, and the legal underpinnings of programs.  At my request, following the President’s disclosure of the TSP, a major portion of our next briefing was devoted to legal issues.  Sadly, during my time as Ranking Member, the Bush Administration steadfastly refused to share any legal memos with the Intelligence Committee.
Your reporter’s reference to a New York Times report last month about overcollections of domestic communications by the NSA inaccurately conflates that episode with FISA abuses that occurred during the Bush Administration.  The incident cited by The Times was identified as part of a periodic review of NSA operations, brought to the attention of Attorney General Holder, promptly corrected, and new safeguards put in place.

           I doubt that anyone disagrees with the need to understand the intentions and plans of those who would harm us, but it’s equally true that our efforts to maintain security must follow our laws and Constitution.  Otherwise, the bad guys win.  As I often say, liberty and security are not a zero sum game; we either get more – or less – of both. 

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