THE NATIONAL Security Agency receives word that an American citizen living in the United States who may have connections to a terrorist organization is about to make an important phone call. There's no time to contact a court and obtain a warrant. The agency decides to continue tapping into the potentially revealing call, knowing that its actions are in accordance with law as long it later obtains a warrant with a justifiable explanation for spying from the secret Foreign Intelligence Security Act court.
Sounds reasonable and easy to do, right? Not according to the Bush administration.
Domestic spying is certainly warranted in cases where intelligence has a lead on a dangerous enemy, but provisions for these cases were made within the Foreign Intelligence Surveillance Act of 1978, long before the Bush administration took office. The law allows suspected terrorists to be under surveillance prior to receiving a warrant by a secret court, in case immediate surveillance is required.
Receiving a warrant doesn't compromise the mission of hunting terrorists, as the Bush administration has argued, because it would be perfectly legal for the government to get a warrant after the fact, as provided for in FISA. Additionally, since the suspects in wiretaps are citizens of the United States, they, like all American citizens, deserve due process, even if the warrants are retroactive.
Warrantless wiretaps are indefensible because the government could have gotten a warrant after the fact. Even former Secretary of State Colin Powell said of wiretapping domestic calls that "even in the case of an emergency, you go and do it. The law provides for that. And then, three days later, you let the court know what you have done and deal with it that way ... but they [the administration] chose not to do it that way."
Since wiretapping can be justified after the act, there is no compromise of intelligence, but the domestic wiretap must eventually be justified, whether by FISA or through the last resort of a congressional hearing. The Bush administration has argued with heated rhetoric about inherent executive power in the constitution to act in times of war. However, there was absolutely no reason for the administration to go over the law, especially considering that the actions needed to comply with FISA did not compromise the mission to wiretap on suspects. This was one executive act that is completely unjustifiable by the administration.
The Bush administration really needs a reality check on what constitutes justifiable spying.
After considerable pressure, Bush agreed to congressional hearings on his spying on American citizens. While his motive will primarily be to accuse investigating Democrats of aiding the terrorists, neither Congress nor the American people are likely to follow Bush blindly as they did in the immediate post-Sept. 11 era. Cooler heads should prevail, and Bush's illegal wiretapping should be exposed for what it truly is -- illegal. Illegal domestic wiretapping must be stopped and renounced before other laws are trampled upon, especially when the administration has no need to disobey them.
Besides, even if the Bush administration truly believed that the current laws compromised national security, the administration should work with Congress to change the laws governing the National Security Agency quickly. However, there is little reason for the provision to be altered. According to The Washington Post, warrantless searches have been conducted from Carter to Clinton in international cases not protected by the Constitution. However, domestic wiretaps have, and should, have additional provisions to protect Americans' interests and keep spying within constitutional restraints. Even the current provisions give a significant amount of leeway to the administration to conduct surveillance on suspected terrorists.
You would think the administration's response to release of the story would be one of contrition. Sadly, Bush's initial reaction was to demand an investigation into the person who exposed the surveillance to The New York Times. It seems clear that the future envisioned by the administration resembles that of a police state similar to 1984 more than a government that protects American interests.
If the administration breaks the law to hunt down terrorists, then it will be one step closer to being those they are tracking -- neither the administration nor the terrorists will have any respect for obeying the law. Hopefully, future congressional hearings can shed some light and stop future practices.
Somewhere out there, Nixon is smiling.
Adam Silverberg's column appears Fridays in The Cavalier Daily. He can be reached at asilverberg@cavalierdaily.com.
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