Hogan's Alley

Friday, December 16, 2005

Surveillance Without Warrants

As to the substance of the Times' story about the NSA's surveillance of thousands of people without warrants, could they find no one in over a year who would provide any statement of a rationale supporting such actions? The story has many views attributed, usually anonymously, to critics of the activity, but none supporting it. The only paragraphs that comes close to providing such an rationale are at the very end of this long story and read:

The next year, Justice Department lawyers disclosed their thinking on the issue of warrantless wiretaps in national security cases in a little-noticed brief in an unrelated court case. In that 2002 brief, the government said that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

Administration officials were also encouraged by a November 2002 appeals court decision in an unrelated matter. The decision by the Foreign Intelligence Surveillance Court of Review, which sided with the administration in dismantling a bureaucratic "wall" limiting cooperation between prosecutors and intelligence officers, cited "the president's inherent constitutional authority to conduct warrantless foreign intelligence surveillance."

But the same court suggested that national security interests should not be grounds "to jettison the Fourth Amendment requirements" protecting the rights of Americans against undue searches. The dividing line, the court acknowledged, "is a very difficult one to administer."

Given the unprecedented nature of international terrorism and the proven dangers shown by 9/11 and the attacks in Britain and Spain, aggressive surveillance of terrorist cells is surely essential to preventing attacks. At the same time, we can't maintain our status as a free people if the government can willy nilly monitor our conversations and email with no oversight by another branch, either the courts or Congress. From this perspective the release of this report is an essential first step in the argument that will follow in public and in the courts to leaven the government's power, while maintaining our ability to protect ourselves.