By Rachel King
August 18, 2006
On August 17, 2006, U.S. District Court Judge Anna Taylor struck down a warrantless surveillance program established by the National Security Agency (NSA) known as the “TSP.” President Bush first authorized warrantless wiretapping in 2002, in the wake of the September 11th attacks, and has reauthorized the program at least 30 times since then. Once news of this secret program was made public, the American Civil Liberties Union brought suit on behalf of a group of journalists and lawyers who regularly conduct international business and claim that they are unable to do their jobs because the surveillance program has chilled communication with their clients and contacts.
The Bush administration hotly defends its program, claiming that it needs the authority to conduct warantless wiretaps on international calls in order to fight the war on terror. It asserts that it must be able to monitor every phone call without a warrant, because the process of seeking a warrant could compromise its investigation.
It is true that the normal process of obtaining a search warrant could possibly jeopardize intelligence investigations. That is why Congress passed a law nearly thirty years ago called the Foreign Intelligence Surveillance Act (FISA). FISA authorized the creation of special “FISA Courts” where the administration can investigate intelligence crimes in secret, without going through the normal criminal court process. The government agent goes before a secret judge and lays out the government’s case and the reason it needs a wiretap or search warrant. Once the warrant is granted, the fact of the warrant and all the information relied upon to get the warrant remain secret. FISA courts have been in existence for thirty years, but the USA PATRIOT Act, passed in October 2001, expanded the authority of the courts so that more crimes could be investigated through FISA courts. The Patriot Act also lowered the standard of proof necessary for obtaining a warrant. In other words, the president already has the ability to obtain a search warrant in secret based on less than a probable cause standard of proof. What more power does he need?
What the administration is arguing is that it should be able to have unlimited authority to monitor international calls without first obtaining approval from an independent source.
Americans should be deeply concerned that the administration is making this argument. One of the basic constitutional principles in our system of government is the idea that there are checks and balances and, therefore, oversight by the different branches of the government. The executive branch cannot listen in on the phone conversations of Americans without first going before a judge and making the case that there is some reason to believe that that person is engaged in illegal activity. This keeps the power of the executive in check so that the president, or FBI agents, or police officers, cannot just listen in on the conversations of just anyone.
Some may say that if you don’t have anything to hide, what’s the problem? If you aren’t doing anything wrong, then why should you care if the government is listening to your international phone calls?
For one thing, listening in on every conversation is not an effective way to do law enforcement. Requiring the executive branch to at least have some reason to believe that a person is breaking the law before it can listen in on conversations creates more effective policing. As with any kind of mining operation, it is better to have some evidence that oil, or whatever mineral you are drilling for, is present before you go drilling willy nilly in every possible field or ocean.
Also, if we don’t protest against warrantless wiretaps of international calls, where will the government’s power end? Why not permit warrantless eavesdropping on all of our telephone calls? Or all of our internet communications? Or, for that matter, why not permit monitoring of all of our activities? The District of Columbia has authorized installing cameras in residential neighborhoods. These cameras are connected to computers and can download the information directly into them. Why not just go a step further and install cameras in all of our homes so that the government can make sure that everything we do is legal at all times?
What the Bush administration is doing is truly un-American. President Bush’s actions have grossly disregarded bedrock constitutional principles—the separation of powers and the right to be free of unreasonable intrusion by the government. What is even more disturbing is that most Americans are not even upset by what is going on. Eternal vigilance may be the price of liberty, however, it appears to be a price that many Americans are unwilling to pay.
Rachel King is a Professor of Law at Howard University School of Law in Washington, D.C.
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