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Crossing a fine line in wiretapping
Scripps Howard News Service


March 02, 2006

WASHINGTON - A friend who is a former member of the intelligence community speculated the other day that what really concerns the Bush administration is that the National Security Agency's warrantless wiretapping has not been confined to overseas calls despite claims to the contrary.

He said that although Attorney General Albert Gonzales testified before Congress that President Bush put purely domestic calls and e-mails off limits to NSA eavesdropping and surveillance without court approval, that ban makes little sense in keeping tabs on the chain of communications that might link those suspected of having contact with terrorists. Breaking that chain, he said, would be unthinkable if there was the least bit of suspicion of illicit activity.

He gave this scenario: A person makes a call from Los Angeles to Pakistan that is picked up by NSA. Finishing that conversation, the caller then immediately places another call to New York reporting on his previous call. Does anyone really believe for a second that NSA immediately halts the eavesdropping after the Pakistan call, either permanently or to rush to the Foreign Intelligence Surveillance Act judge to seek a warrant?

That makes very little sense and without any specific knowledge of events it still seems a safe bet that the extent of anti-terrorist activities, including the wiretapping measures, have either gone over or skirted quite close to the edge of legality. In a letter to the Senate Judiciary Committee members investigating the situation, Gonzales seems to imply something to that effect. He said that in testifying about the extent of NSA activities authorized by the president "I did not and could not address" any other classified intelligence activities.

What would be the impact of discovering that, contrary to administration claims, NSA has been monitoring domestic conversations and e-mails between American citizens without a warrant? Is "enormous" descriptive enough? First of all it would put the president in a precarious position. In this election year, the congressional howls - already loud over a series of war on terrorism issues, including the furor over the outside management of the nation's ports - would reach a painful decibel.

A parallel situation in history would be the CIA's constant fear in the 1970s of disclosure that it had been conducting domestic spying operations, including possible assassinations of double agents, despite a strict congressional prohibition on doing so. When it was disclosed that the agency had crossed that line at least to some degree the disclosure resulted in an overhaul from which the agency still is trying to recover.

The constitutional questions stimulated by the disclosure of NSA's warrantless activities have served to highlight the dilemma faced by those in charge of gathering intelligence sufficient enough to avoid a repeat of the 9/11 attack on America. How far are those charged with this job allowed to go without the wholesale abuse of American civil liberties? Is the failure to halt the next assault the price we must pay to protect our free society? It is a delicate and unenviable task and certainly one fraught with danger for the nation.

Furthermore the entire scope of U.S. activities in this area has served as an arena to highlight a historic struggle between the presidency and the legislature over primacy, whether the president's authority to conduct war, in this case the terrorist variety, gives him the latitude to ignore a specific act of Congress.

It does seem unreasonable to expect NSA or any other agency so involved to cut off its surveillance when the conversation suddenly switches from overseas to purely domestic, depriving the intelligence of a lead that may be the key to bringing down a plot against the nation. But that is why FISA was passed - to give special and prompt attention to matters of national security and to make certain intelligence measures were justified and not just an attempt to browse through the private affairs of Americans.

There are few things more potentially disruptive to citizens' rights than unlimited governmental intrusion, e.g., wiretapping that is exactly the fishing expedition that Congress was concerned about. Obviously, if the president considered and then limited the scope of NSA's unwarranted activities to those calls made from here to overseas or visa versa, as Gonzales testified, he was well aware of the pitfalls of going further.

One would hope that NSA followed that restriction exactly. But it would come as no surprise to learn that has not been the case. The constitutional ramifications are, shall we say, enormous.


Dan K. Thomasson is former editor of the Scripps Howard News Service.

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