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This Call May Be Monitored ...
New York Times Editorial
12/18/05 "New
York Times" -- -- 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.
Copyright 2005 The New York Times Company
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