Few things are more disruptive to civil liberties or carry more potential for abuse than domestic wiretapping and eavesdropping undertaken without a warrant. It is an Orwellian nightmare unsupportable by any circumstance and when included with a number of other acts in the name of national security helps form a pattern of intrusion in the daily lives of Americans that is almost unduplicated in the nation’s history.
Clearly President Bush believes that 9/11 gave him the power to bypass the normal checks and balances of Congress and the judiciary and to ignore law that requires judicial review and approval for any proposed domestic surveillance. The immediate result of that jarring opinion, which he defended publicly, may be congressional refusal to renew desirable portions of the so-called Patriot Act, set to expire on Dec. 31. In the long term, if unchallenged, it is a potential precedent no true democracy can tolerate.
Throughout our history, presidents have attempted to play the national security card as a reason to suspend civil liberties, mainly unsuccessfully. Richard Nixon tried to do so during the height of the Vietnam War protests, contending it was necessary on grounds that violent student outbreaks were being financed by foreign interests. A plan allowing broad executive privilege in these matters was devised by a young White House aide but failed only when FBI director J. Edgar Hoover refused to sign off on it. It was even too much of an intrusion for Hoover, who was hardly known as a civil libertarian.
Spying on innocent Americans always has been the boogeyman of counterintelligence and that specter almost cost the CIA its charter in 1947 as Congress fiercely debated the merits of an agency whose mission many believed would include nosing into the lives and business of U.S. citizens at home and abroad. A compromise that prohibited the CIA from domestic counterintelligence and awarding that jurisdiction to the FBI saved the agency.
Now we discover that despite the 1978 Foreign Intelligence Surveillance Act, which precludes warrantless wiretapping and eavesdropping, the super secret National Security Agency has been doing just that with presidential approval for four years. It is anyone’s guess how many Americans have had their overseas business shared with NSA since the fall of 2001, but the estimates are in the tens of thousands.
What is the justification? The president waves opinions from his own counsel and the Justice Department supporting his right to do so and he argues that four leaders of Congress were briefed on what was happening. There is some dispute about how detailed the briefings were. Nevertheless, the argument backing his decision is that the warrant process often takes too long and that U.S. intelligence misses valuable information because of this. That contention rings hollow when one considers that a special secret tribunal is on call to review the cause and grant the warrants. Furthermore, modern terrorists, particularly those involved with al-Qaeda, don’t do a lot of electronic jawing outside their own cells. They compartmentalize their activities and assignments much like the CIA. In fact, they are as aware as anyone that NSA, which may be the worst kept secret in the world, is out there listening.
The danger from the national trauma of 9/11 always has been over reaction that caused the government to go too far in impinging on our freedoms. Like chemotherapy, the cure for the cancer of terrorism could be as debilitating to democracy as the disease itself. Without a doubt, we should not deny those assigned to protect our shores, borders and public places the tools necessary to do so _ but under strict review. The president, as the last word in this effort, should not act unilaterally, ignoring the constitutional jurisdiction of the other two branches of government. Unfortunately, that seems to be just what was done in this case.
It is going to be very difficult for Bush to convince Americans already concerned about growing infringements of their individual privacy that their best interests require such measures. Who knows what abuses have occurred and whether the invasive procedure has been limited to international calls and e-mails. Anyone who believes in the purity of these adventures has been starting his New Year toasts too early. Even the president’s allies are shocked and a congressional inquiry that will erode further Bush’s credibility and hinder his domestic agenda is almost certain to take place, despite the efforts of Republican leaders to block it. It should. He is dead wrong in this case.
(Dan K. Thomasson is former editor of the Scripps Howard News Service.)