By JOHN HALL
Media General News Service
January 28, 2006
Limited ways can be found in a free society to do what needs to be done. They have before.
The issue, however, now has become the subject of a major constitutional collision. Several Democrats claim Bush broke the law. The president has launched a counteroffensive, claiming sweeping authority to conduct domestic surveillance as part of the war on terrorism.
After the Sept. 11 attacks, President Bush authorized the National Security Agency to conduct wiretaps without approval of a court that had been set up at the Justice department expressly for the purpose of secretive surveillance cases. Called the Foreign Intelligence Surveillance Court, it was established under a 1978 act of Congress following the Watergate scandal and the associated exposure of unauthorized wiretaps by the Nixon administration.
Bush said the FISA procedure is too cumbersome to catch the nimble terrorists of the post 9/11 era. Attorney General Alberto Gonzales said professional intelligence officers must have the discretion to make decisions about particular intercepts without waiting hours or days for all the paperwork to clear and a judge to decide. Evidence and suspects disappear and the trail often goes cold.
The Bush administration has begun calling the secret intercepts the "Terrorist Surveillance Project." Michael Hayden, deputy director of National Intelligence, contended that the new program affects only international calls and "only those we have a reasonable basis to believe involve al-Qaeda or one of its affiliates."
Some Democrats and a few Republicans, however, have expressed concern because the program was shrouded in secrecy. Wiretaps were ordered without even informing the surveillance courts.
The sweeping claims of authority President Bush has made for invoking the surveillance project are provoking as much outrage among civil libertarians as the project itself.
Because of his role as commander in chief of the armed forces and his duty to "protect and defend" the American people, Bush claims an expansive wartime role that seems to grow with each speech he and his officials make.
The furor they have engendered has spilled over into the confirmation debate for Samuel Alito as the ninth justice of the Supreme Court.
Alito's opponents argued that as a federal judge he has often taken the side of the executive branch in the struggles with Congress over sharing power and is likely to continue to do so as a justice. Sen. Hillary Clinton, D-N.Y., called his ascendancy to the Supreme Court "the tipping point against constitutionally based freedom. The stakes could not be higher."
Politically, Bush has decided to make an aggressive effort not only to defend himself, but to sell the American people on the value of the surveillance program after its existence was disclosed by The New York Times. His chief political adviser, Karl Rove, suggested that Democrats who oppose the program are no longer interested in tracking down al-Qaeda operatives in this country.
On the other side, Democrats have decided to make illegal surveillance one of their biggest issues in the congressional elections next year. They could gain if they convince people that Bush deliberately wiretapped and bugged their phones and e-mails. The recent Justice department attempt to subpoena wide-ranging customer search data from Google Inc. also is being painted as the work of an administration with unusual interest in people's private lives.
As far as the business of finding and catching terrorists is concerned, the verdict is still out about whether the FISA process or the secret surveillance project that operated alongside has been very effective. According to ABC News, the number of FISA warrant applications doubled between 2001 and 2004. The number of unauthorized wiretaps and the arrests made as result of the spy program is secret.
There is no evidence that Congress and the White House ever made any attempt to work out a procedure that would have made the Terrorist Surveillance Project limited, legal and above board.