President Bush authorized the National Security Agency to spy on people in the United States without first gaining court approval.
A Times Editorial
Published December 18, 2005
President Bush apparently believes that fighting terrorism justifies any action he chooses, no matter how extralegal. But the United States is a nation of laws, and the president is constrained by them, too. That is why Bush's unilateral authorization granting the National Security Agency the power to wiretap American citizens and others in the United States without a warrant is so dangerously ill-conceived and contrary to this nation's guiding principles.
Just as the Senate was considering the reauthorization of the USA Patriot Act and debating the safeguards needed to protect Americans from excessive government snooping, it was revealed that the NSA has been spying on potentially thousands of people in this country, without first going to a court for approval.
This is part of an imperial presidency that has emerged under Bush since the 9/11 terrorist attacks. On the authority of the executive branch alone, the administration has imprisoned people for years without charge, captured suspects and put them in secret overseas prisons, and engaged in interrogation techniques that violate domestic law and international treaties. Now the New York Times report on more spying reveals that the dictates of the Fourth Amendment, requiring a showing of probable cause before someone's privacy can be invaded, have been set aside upon the president's sole say-so.
The NSA has authority to intercept phone calls, Internet communications and other signal intelligence off American shores without first having to obtain a warrant. But the agency has always recognized that no domestic spying could take place without court approval. For these purposes, a special foreign intelligence court is always available and agents usually can obtain wiretaps within hours.
The court accommodates the need for secrecy while providing the constitutionally required judicial oversight. It was established after it came to light in the 1970s that the country's intelligence services were surveilling Vietnam War protesters and those engaged in the civil rights movement. The Foreign Intelligence Surveillance Court rarely turns down a wiretap request, but it is there to ensure that the intelligence services respect individual rights in the course of their work.
Members of Congress are rightly expressing shock and concern that the NSA has been engaging in warrantless eavesdropping on international phone calls initiated inside the United States. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., is promising to hold hearings early next year to investigate the administration's surveillance program. This is a positive step. Until recently, Congress has relinquished much of its oversight duties - whether due to party loyalty or fear of challenging a wartime president - and left it to the courts to define limits on presidential power.
But with Congress finally debating issues such as the use of torture, the maintenance of secret CIA prisons and the holding of ghost detainees, there seems to be new resolve to challenge the Bush administration's willingness to ignore constitutional protections it deems inconvenient. Those efforts are supremely welcome and can't come soon enough.
