PRESIDENT BUSH WAS CAVALIER on Friday night when he told Jim Lehrer on PBS that a report about the National Security Agency eavesdropping on U.S. citizens was “not the main story of the day.” He is entitled to his own news judgment, but it reveals a lot about his willingness to disregard constitutional safeguards and civil liberties while pursuing the war on terrorism. To the rest of us, the revelation in the New York Times that the National Security Agency has been eavesdropping on people within the United States without judicial warrants was stunning. In one of the more egregious cases of governmental overreach in the aftermath of 9/11, Bush secretly authorized the monitoring, without any judicial oversight, of international phone calls and e-mail messages from the United States.
The news came on the same day that Congress voted not to extend controversial aspects of the soon-to-expire Patriot Act, and on the heels of disturbing reports that the Pentagon’s shadowy Counterintelligence Field Activity office has been keeping tabs on domestic antiwar groups, including monitoring Quaker meetings, under the guise of protecting military installations. The program is reminiscent of official efforts to spy on antiwar groups in the 1960s.
The scandalous abuse of Americans’ civil liberties in that period led in the 1970s to a new set of laws aimed at curtailing domestic espionage by intelligence agencies. To balance national security needs with our constitutional liberties, the Foreign Intelligence Surveillance Act created secret “FISA” courts in which the Federal Bureau of Investigation and other federal agencies can covertly obtain warrants to eavesdrop on suspected spies (now terrorists too) in the United States. These courts are generally efficient and deferential to the government. Yet the Bush administration still opted to cut them out of the process in some cases; warrants are still sought to intercept all communications that took place entirely within the United States.
Some critics say the FISA courts are too slow to issue decisions in an environment in which every minute counts, and that Cold War laws are ill-suited for a war on amorphous terrorist cells. If that’s the case, the administration and Congress should have worked together to alter the courts’ procedures or to amend the law. Instead, the White House unilaterally opted to exempt much of its antiterrorism efforts from any kind of judicial oversight -- just as it tried doing with its policies regarding detainees.
The Supreme Court has already reined in the executive branch on that score, and the NSA’s eavesdropping, arguably a violation of both the law and the Constitution, may lead to even greater legal woes for the president. Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, called reports of the NSA practices clearly unacceptable and said he would hold hearings early next year. There will be plenty to ask about.
One early defense of the program is a claim by the administration that it had to be implemented quietly -- the president authorized it in a classified order -- because otherwise terrorists would be alerted to its existence and work to evade it. But those same suspected terrorists would have already known that they might be wiretapped with the aid of a secret warrant. What is the difference?
Last week may come to be seen as a tipping point in the public’s attitude, one that will cause the administration to reverse its encroachment on rights in the name of security. The report of the NSA’s unsupervised eavesdropping program helped defeat an extension of certain controversial provisions of the Patriot Act in the Senate on Friday.
Now even sympathetic lawmakers can be expected to view the Patriot Act more skeptically. The revelations about the NSA raise two fundamental questions about the administration’s rationale for increased powers: If it’s already spying on its own citizens, then why does it need the Patriot Act? Alternatively, if it’s already spying on its own citizens, how can it be trusted with the Patriot Act? This administration has yet to fully acknowledge that with greater powers must come greater accountability.
As for the Defense Department’s counterterrorism database, the Pentagon was forced on Thursday to acknowledge that it hadn’t followed its own guidelines requiring the deletion of information on American citizens who clearly don’t pose a security risk. Imagine that: a domestic military intelligence program that failed to abide by its own safeguards.
Given this administration’s history, none of these developments is especially surprising. But the latest revelations may serve as a timely reminder of why the American constitutional system requires the judiciary -- the third branch of government -- to review the actions of the executive branch when necessary to protect the people’s liberty.