Is warrantless wiretapping a legitimate tool?

March 2, 2006, midnight | By Kiran Bhat, Armin Rosen | 18 years, 3 months ago

On Dec. 16, 2005, The New York Times printed a story entitled "Bush Lets U.S. Spy on Callers Without Courts." The story detailed a program in which the National Security Agency (NSA) eavesdropped, without warrants, on Americans they thought were communicating electronically with terrorists outside of the country. On Feb. 6, Attorney General Alberto Gonzales met with members of Congress to discuss the program. While opponents argue that the wiretapping is detrimental to civil liberties, supporters maintain that it is necessary for the protection of American citizens.

Armin Rosen says YES: Today, safety should trump some rights

It's treated by not one, not two, but four amendments to the U.S. Constitution. It safeguards countries against deteriorating into police states, and its revocation is a typical portent of totalitarianism.

But ironically, our traditionally strict concept of the right to due process, one of the crucial democratic principles that separates the U.S. from many of its enemies, is one thing that our enemies could easily use against us. The difficult truth is that the warrantless surveillance of Mohammed Atta or Zacharias Moussawi, whose only apparent "crimes" prior to the 9/11 attacks were suspicious overseas phone calls and equally suspicious contacts and activities, might have prevented the worst terrorist attacks in history.

Today, with the knowledge that al Qaeda is actively plotting against America's safety and security, it is vital to redefine due process for a time in which it can act more as an unreasonable barrier than a crucial societal safeguard.

Thirty years after the Foreign Intelligence Surveillance Act (FISA) was passed in a time when planes flying into buildings seemed unimaginable, excessive due process is increasingly illogical. While the wiretaps have had relatively poor return given the number authorized, any intelligence is vital when dealing with an enemy that has shown the capability and willingness to kill large numbers of American citizens.

Air Force General Michael Hayden, the nation's second-ranking intelligence official, says that the wiretaps have supplied information that "would not otherwise have been available," while FBI Director Robert Meuller says the program helped identify "individuals who were providing material support to terrorists." These wiretaps were not errant or malicious violations of civil liberties. They served, and continue to serve, a vital purpose — the defense of the U.S. against a dangerous and determined enemy.

The FISA court, meanwhile, has acted as a secret rubber stamp on warrant applications, rejecting only four in its 27-year history. It is more an obligatory procedural step than a substantive guarantor of due-process rights, and circumventing it in light of the importance of quick, effective intelligence seems reasonable.

It is delusional to think that decisions like removing the wholly meaningless protections granted to people who may be communicating with terrorists are avoidable when combating a threat as unique as terrorism. Even so, any amount of due process is a difficult sacrifice and decreases the degree to which Americans are protected from arbitrary government decisions and actions. But it is the basic expectation of a safe and functioning society that allows us to maintain the right to due process in the first place.

It must be remembered that the primary goal of terrorism is to shatter the social tranquility that prefigures the liberties we enjoy. Warrantless wiretapping, though intrusive, is a troubling reminder that we live in a world where such things are necessary and that ours is a time in which the rights-versus-security debate can no longer be framed in terms of abstract constitutional issues. It has to be framed in terms of what is now at stake — American lives.

Some have suggested that the debate doesn't need framing and that it's as simple as reforming FISA and balancing safety and due process rights. But reforming the FISA court to make it stronger will only add more bureaucratic obstacles to securing intelligence, while reforming the court to make it weaker will render it even less relevant and more procedural than it is already.

Any isolated reforms will be superficial at best. They are not enough to lead Americans to the essential conclusion that when the rights-for-security tradeoff can be justified, we should not let a strict, absolute and outdated perception of civil liberties guide us.

There will never be a time in which due process is meaningless or irrelevant, but there are some times at which it has to be considered more flexible than at others. With terrorists actively plotting against us, flexibility is important. The FISA court is not.

Kiran Bhat says NO: Wiretapping hypocritical, too intrusive

Although President George W. Bush argues that his recently revealed domestic wiretapping program is essential to national security, it is actually working to corrode the very freedoms upon which our nation is built. The program places the executive above the law and threatens the system of checks and balances that is the model for fledgling democracies in Iraq and Afghanistan.

If the United States is to lead the world into an era of global democracy, as the president proposes, the government must have its priorities straight at home. Its first order of business ought to be the protection of individual rights, a fundamental component of any democratic system of government. The President's NSA domestic spying program violates these rights and must be abandoned as soon as possible.

To date, much of the public debate over the wiretaps has focused on the constitutionality of authorizing searches on individuals without a warrant. But what is more worrisome about the program is the administration's myopic disregard for an organized and fair legal system and what that disregard signals for the future of American civil liberties.

In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which created a clandestine court that grants or denies warrants to government agencies seeking to use wiretaps on foreign calls.

FISA applies directly to today's situation, as the domestic spying program still monitors foreign calls, albeit from suspected al Qaeda agents instead of contacts in the USSR.

FISA is a logical check on government authority, providing citizens the reassurance that government agencies are not spying indiscriminately. Yet the administration has done all it can to flout the court. The president's order allows the NSA to skip the court and its warrants altogether, offering the NSA a blank check on surveillance.

During a Feb. 6 session before the Senate Judiciary Committee explaining the program, Attorney General Alberto Gonzales claimed that a "qualified professional" at the NSA was judging on a case-by-case basis the legitimacy of each individual wiretap. Such subjective supervision is not transparent. It pales in comparison to the objective check a court provides, and the lack of strong oversight on the NSA program has already had alarming consequences.

Peace activist groups in Florida and Maryland have brought lawsuits against the government on grounds that the NSA inappropriately spied on their activities because their beliefs were in opposition to those of the administration. If verified in court, such actions would reveal the government's potential to misuse its power for political gain in the name of national security.

The government's refusal to reveal lists of whom it is spying on is understandable, but it conveniently forms a veil behind which agencies can hide from the media and other branches of government. Carrying the banner of national security, the NSA program is effectively self-contained and accountable to no one other than high-ranking government officials who do not seem afraid to impose wiretaps on their own citizens.

Even though FISA is clearly intended to serve as a check on governmental power, Bush and Gonzales argue that it unnecessarily burdens investigators hoping to gain access to terrorist conversations. These logistical concerns — such as ones that FISA may reject vital requests for wiretaps or that terrorist conversations with American citizens may end prior to a court approval — are valid.

However, wholesale marginalization of the court and any sort of oversight body on domestic wiretaps is not an acceptable solution to these problems. Congress should confirm objective judges and rework the existing surveillance laws to make them less cumbersome, thereby protecting liberties at home and defeating those who threaten them from abroad. Only by defending our own rights at home can we legitimately espouse their advantages overseas.

Kiran Bhat. Kiran Bhat is a senior who loves the Washington Redskins, 24, Coldplay, Kanye West, Damien Rice, Outkast and Common (Sense). He aspires to be the next Sanjay Gupta. He will miraculously grow a Guptaesque telegenic face and sculpted body by the age of 30. In … More »

Armin Rosen. Armin is a Seeeeenyor in the Communication Arts Program. "I am a journalist and, under the modern journalist's code of Olympian objectivity (and total purity of motive), I am absolved of responsibility. We journalists don't have to step on roaches. All we have to do … More »

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