Domestic Surveillance by the National Security Agency -- 1/16/06
The last of our three catch-up posts. This one is a complicated story, with lots of threads, but mostly it is about presidential power and civil liberties. In a nutshell, this is what happened. (James Bamford, The Nation: Private Lives; The Agency that Could Be Big Brother, NYT, 1/25/06--subscription required.)
In the days after September 11, 2001, President Bush authorized the National Security Agency (NSA), a part of the U.S. intelligence community (see KTR, p. 818), to conduct eavesdropping operations within the United States without first stopping to get a search warrant from a special court set up for that purpose called the FISA court (for the Foreign Intelligence Surveillance Act that established it.)
The domestic spying came to light in a NYT article on December, 16, 2005. (James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers without Courts--subscription required.) The NYT had known about the surveillance activity for a year, but had kept quiet at the request of the Bush administration (raising a storm of questions about free speech and the role of the press in holding politicians accountable. Even the NYT's own public editor was critical. (Byron Calame, Behind the Eavesdropping Story, a Loud Silence, 1/1/06.) When the Times decided to publish their information, Bush accused them of aiding the forces against the United States.
Bush claims that he was empowered to bypass the step of obtaining search warrants because of the need to provide national security and that Congress had basically authorized him to do so with legislation passed immediately after 9/11. Tom Daschle, who was Senate majority leader at the time, says that the Senate specifically did not give Bush that power. (Tom Daschle, Power We Didn't Grant, WaPo, 12/23/05). Other critics of the administration, including some people in the president's own party, claim that Bush overstepped his executive authority and infringed on civil liberties of Americans who are supposed to be protected against unreasonable searches and seizures (i.e., searches without a warrant). The Senate Judiciary Committee plans to conduct hearings into the legality of Bush's authorization. (Douglas Jehl, Specter Says GOP Will Scrutinize Domestic Spying, NYT, 1/15/06.)
As we point out in KTR (pp. 157-158), there is always a tradeoff between civil liberties and national security. We could be completely safe in a locked down state, but not very free. On the other hand, total freedom carries all sorts of dangers and security risks. Drawing the line between security and liberty is a tricky political task. We argue in the book that nonauthoritarian governments are limited in the rights they can take away because citizens in a democracy will be outraged at the loss of freedom. (Katherine Shrader, Poll: Americans Want Warrants for Spying WaPo, 1/11/06.)
Things to think about here:
Are the American citizens outraged at the loss of freedom? How do the polls say they make the tradeoff between freedom and security? Who should decide where to draw the line--the president? Congress? The courts? Public opinion?
Similarly, what obligations does the press have to inform the public (or to keep silent) about issues like this? How do we balance freedom of the press and national security?
What are the long term costs of allowing Bush the kind of strengthened executive authority he is claiming to have here? How do his actions affect checks and balance, given the other ways that the administration has acted to shore up executive authority (see KTR, pp. 319-320; 368, and also the discussion of executive power and “signing statements” in the Alito post, 1/11/06).