Wednesday, January 11, 2006
| By KERMIT L. HALL |
First published: Wednesday, January 11, 2006
| Revelations that President Bush authorized the National Security Agency to eavesdrop on electronic communications should disturb all Americans. The President asserts that his duty as a wartime commander-in-chief requires him to take such measures. |
Asked how he felt about resulting violations of civil liberties, the President responded bluntly: "If somebody from al-Qaida is calling you, we'd like to know why."
He justifies eavesdropping based on the limited nature of the activity, the fact that Congress knew of and acquiesced in it, that presidential prerogative is supported by history, and that his and NSA's lawyers approved of it. The President and his supporters regularly remind Americans of Supreme Court Justice Robert H. Jackson's famous line that "the Constitution is not a suicide pact."
Much like Lyndon Johnson during the Vietnam War, President Bush has little patience with "nervous Nellies." If history is any guide, however, we have every reason to be cautious.
It was to stop similar snooping that Congress in the 1970s passed laws reigning in the NSA, the CIA and the military intelligence services, including in 1978 the Foreign Intelligence Surveillance Act. Sen. Frank Church, who led the charge, also regularly invoked Justice Jackson, but relied on different words. "It is not the function of our government to keep the citizen from falling into error," Church quoted Jackson, "it is the function of the citizen to keep the government from falling into error."
The twin concepts of a written Bill of Rights and separation of powers were integral to doing so. Congress in 1978 respected both of these concepts when it struck a balance between the nation's need for spying, even on its own citizens, with a long tradition of protecting rights. The instrument to do so was the Foreign Intelligence Surveillance Court, composed of federal judges appointed by the chief justice of the United States, not the president.
Notably, FISC was granted power to issue warrants for wiretapping and other forms of electronic surveillance directed at persons engaged in espionage or international terrorism against the United States. By all accounts FISC has performed well, especially in the wake of Sept. 11, 2001. President Bush, however, has chosen to ignore FISC and engaged unilaterally in activities that should have been appropriately supported by warrants from this court.
Given the President's penchant for selecting justices for the Supreme Court committed to the original intent of the framers of the Constitution, his posture is puzzling. Perhaps that is why his detractors have compared him to another George, this one the English monarch at the time of the American Revolution.
The framers of the Bill of Rights fully understood the value of having judges involved with matters of search and seizure. While they had no experience with electronic communications, they grasped the importance of subjecting law enforcement officials to judicial oversight. Under the scheme of separation of powers, they required law enforcement to make a case in support of a warrant to invade the privacy of another.
The wording of the Fourth Amendment reminds us, as did Justice Jackson's suicide reference, that the framers tempered liberty with respect for security and endorsed protection against only "unreasonable" searches and seizures. They did not set a particularly high threshold for the executive to secure a search warrant. "No warrants shall issue," the amendment reads, "but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The architects of the Bill of Rights appreciated that even the greatest patriots could draw different inferences about what was reasonable and probable. Best to leave these tasks to impartial judges instead of an officer engaged in trying to solve a crime or, in this instance, intercept a message involving terrorist activity. Asking law enforcement or intelligence services to set alone the standard for search and seizure would be tantamount to asking the fox to guard the constitutional chicken coup.
That is why President Bush's declaration that Department of Justice and NSA lawyers find the warrantless searches legal falls flat.
President Bush does seem to be on firm ground when he proclaims that the perfection of liberty should not be the enemy of the common good. In what promises to be an extended period of terrorist threat, the President reasonably protests that he must be able to act quickly, just as a police officer must be able to thwart a wrongdoer.
Still, the President should recognize that by flouting FISC and relying on his own advisers to legitimate his actions he defies the framers he so reveres and the tradition of skepticism about power that they so wisely enshrined.
He might turn once again to Justice Jackson, who warned, "We can afford no liberties with liberty itself." If he does not, then he may well end up promoting constitutional suicide by eavesdropping.Kermit L. Hall is a legal historian and president of the University at Albany. He is editor-in-chief of The Oxford Companion to the Supreme Court of the United States (2nd. rev. ed., 2005) and The Oxford Companion to American Law (2002), and co-editor with Kevin McGuire of The Judicial Branch (2005).