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This Call May Be Monitored ...
The New York Times | Editorial
Sunday 18 December 2005
On Oct. 17, 2002, the head of the National Security Agency, Lt. Gen.
Michael Hayden, made an eloquent plea to a joint House-Senate inquiry on
intelligence for a sober national discussion about whether the line
between liberty and security should be shifted after the 9/11 attacks,
and if so, precisely how far. He reminded the lawmakers that the rules
against his agency's spying on Americans, carefully written decades
earlier, were based on protecting fundamental constitutional rights.
If they were to be changed, General Hayden said, "We need to get it
right. We have to find the right balance between protecting our security
and protecting our liberty." General Hayden spoke of having a "national
dialogue" and added: "What I really need you to do is talk to your
constituents and find out where the American people want that line
between security and liberty to be."
General Hayden was right. The mass murders of 9/11 revealed deadly gaps
in United States intelligence that needed to be closed. Most of those
involved failure of performance, not legal barriers. Nevertheless,
Americans expected some reasonable and carefully measured trade-offs
between security and civil liberties. They trusted their elected leaders
to follow long-established democratic and legal principles and to make
any changes in the light of day. But President Bush had other ideas. He
secretly and recklessly expanded the government's powers in dangerous
and unnecessary ways that eroded civil liberties and may also have
violated the law.
In Friday's Times, James Risen and Eric Lichtblau reported that sometime
in 2002, President Bush signed a secret executive order scrapping a
painfully reached, 25-year-old national consensus: spying on Americans
by their government should generally be prohibited, and when it is
allowed, it should be regulated and supervised by the courts. The laws
and executive orders governing electronic eavesdropping by the
intelligence agency were specifically devised to uphold the Fourth
Amendment's prohibition of unreasonable searches and seizures.
But Mr. Bush secretly decided that he was going to allow the agency to
spy on American citizens without obtaining a warrant - just as he had
earlier decided to scrap the Geneva Conventions, American law and Army
regulations when it came to handling prisoners in the war on terror.
Indeed, the same Justice Department lawyer, John Yoo, who helped write
the twisted memo on legalizing torture, wrote briefs supporting the idea
that the president could ignore the law once again when it came to the
intelligence agency's eavesdropping on telephone calls and e-mail messages.
"The government may be justified in taking measures which in less
troubled conditions could be seen as infringements of individual
liberties," he wrote.
Let's be clear about this: illegal government spying on Americans is a
violation of individual liberties, whether conditions are troubled or
not. Nobody with a real regard for the rule of law and the Constitution
would have difficulty seeing that. The law governing the National
Security Agency was written after the Vietnam War because the government
had made lists of people it considered national security threats and
spied on them. All the same empty points about effective intelligence
gathering were offered then, just as they are now, and the Congress, the
courts and the American people rejected them.
This particular end run around civil liberties is also unnecessary. The
intelligence agency already had the capacity to read your mail and your
e-mail and listen to your telephone conversations. All it had to do was
obtain a warrant from a special court created for this purpose. The
burden of proof for obtaining a warrant was relaxed a bit after 9/11,
but even before the attacks the court hardly ever rejected requests.
The special court can act in hours, but administration officials say
that they sometimes need to start monitoring large batches of telephone
numbers even faster than that, and that those numbers might include some
of American citizens. That is supposed to justify Mr. Bush's order, and
that is nonsense. The existing law already recognizes that American
citizens' communications may be intercepted by chance. It says that
those records may be retained and used if they amount to actual foreign
intelligence or counterintelligence material. Otherwise, they must be
thrown out.
President Bush defended the program yesterday, saying it was saving
lives, hotly insisting that he was working within the Constitution and
the law, and denouncing The Times for disclosing the program's
existence. We don't know if he was right on the first count; this White
House has cried wolf so many times on the urgency of national security
threats that it has lost all credibility. But we have learned the hard
way that Mr. Bush's team cannot be trusted to find the boundaries of the
law, much less respect them.
Mr. Bush said he would not retract his secret directive or halt the
illegal spying, so Congress should find a way to force him to do it.
Perhaps the Congressional leaders who were told about the program could
get the ball rolling.
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