Spying by another name

Editorial

Los Angeles Times

January 26, 2006

WITH POLLS SHOWING THE American public increasingly skeptical about the need to abridge core constitutional freedoms to wage the war on terrorism, the Bush administration launched a major PR offensive this week to justify its decision to conduct warrantless wiretapping within the United States. The White House deserves credit for at least making its case. Unfortunately for the president, it's a weak case, and repetition doesn't make it any better.

Indeed, the administration's marketing team may be more adept than its legal theorists. All White House references to the National Security Agency's eavesdropping now call it a "terrorist surveillance program." That sounds far less objectionable than the media's blanket term, "domestic spying program." After all, it's hard to support domestic spying, but who wants to oppose "terrorist surveillance"? Maybe the Los Angeles Police Department could suspend the 4th Amendment's protections against unreasonable searches by launching a "criminal surveillance program."

Semantics aside, the administration's legal case remains wobbly, which may explain President Bush's churlish attitude toward his critics. On Wednesday, Bush defended the need for the program at NSA headquarters in Maryland. "Now, I understand there's some in America who say, well, this can't be true that there are still people willing to attack," he said. He then referred to Osama bin Laden's latest threatening audiotape.

Get it? The president is equating concerns about the legality of bypassing the courts to obtain a warrant to eavesdrop on Americans with a lack of appreciation for the threats posed by Al Qaeda. In Bush's world, only appeasers stand up for the Constitution.

The Foreign Intelligence Surveillance Act of 1978, which created courts that act quickly and secretly to approve such requests for wiretaps, remains a sensible law. It strikes the proper balance between the need for judicial oversight and the requirements of national security — and helps to ensure that the government does not trample on individual liberty. These courts are extremely accommodating to government requests, which sometimes needn't be supported until after the wiretapping has taken place.

In a long letter to Senate Majority Leader Bill Frist last week, Atty. Gen. Alberto R. Gonzales said that the FISA law itself allows for the possibility that Congress could authorize electronic surveillance in another statute, and argued that the post-Sept. 11 congressional authorization "to use all necessary force" in response to the terrorist attacks is just such a statute. For anyone who feels it's a stretch to think that Congress meant to suspend basic 4th Amendment principles by supporting military action against the Taliban and Al Qaeda, Gonzales is quick to point out that warrantless wiretapping also took place in the Civil War.

The administration is also de-emphasizing the fact that the eavesdropping is taking place on American soil by pointing out that it is only targeting communications that involve one party outside the United States. This is irrelevant as a legal matter. And as a practical matter, it's not entirely true. Lt. Gen. Michael V. Hayden, who led the NSA in the aftermath of the 9/11 attacks and is now the nation's second-ranking intelligence official, conceded on Monday that some purely domestic communications might be accidentally wiretapped under the program.

Senate hearings on the NSA program are scheduled to begin Feb. 6. They could prove interesting if GOP senators opt to cast themselves as defenders of the Constitution, and not of their president.