The national debate over whether President Bush and national intelligence agencies should be required to obtain warrants from federal judges before listening to al Qaeda-related phone calls takes place everywhere, even in the Nevada Appeal newsroom, where I discussed this "hot button" issue with a couple of colleagues the other day.
"If an American citizen is on the phone with an al Qaeda operative, the super secret National Security Agency (NSA) should be monitoring that phone call," I asserted. "But who determines whether the call is really al Qaeda-related?" a left-leaning colleague asked. "Couldn't it be an innocent phone call even though one party or the other mentions the international terrorist organization?" Good questions. So I decided to explore this vital national security issue in greater depth.
The most informative discussion of warrantless wiretapping that I encountered was published by Time magazine in the form of a debate between a right-wing former congressman, Bob Barr of Georgia, who opposes the controversial practice, and an equally conservative columnist, Charles Krauthammer, who favors it.
"How do you think we catch the bad guys?" Krauthammer asked. "The NSA's spying and other tough methods are what have kept us safe after 9/11."
"Presidential snooping damages the nation," Barr replied, "(and) Bush has put himself above the law ..."
For Krauthammer, the national security value of warrantless wiretaps clearly outweighs possible infringements on the constitutionally guaranteed right of privacy. "The (Bush) administration should stop being defensive about its ... intercepted communications," he wrote. "It should step forward and say, 'OK, you got us. We didn't want to talk about this stuff openly, but now you know. We haven't been hit again because ... this (wiretap- ping) program has been successful in detecting and preventing terrorist attacks inside the United States.'" At the outset, I tended to agree with Krauthammer on the theory that intelligence agencies must be able to intervene quickly when such phone calls occur.
On the other hand, however, Barr argued that warrantless wiretapping "is unequivocally contrary to the implied and express requirements of federal law that such surveillance of U.S. persons inside the U.S. - regardless of whether their communications are going abroad - must be preceded by a court order." Barr compared the Bush wiretaps to the late President Nixon's illegal eavesdropping on Americans in the 1970s. And I'm old enough to remember how angry we were when legendary FBI Director J. Edgar Hoover and Attorney Gen. Bobby Kennedy placed warrantless wiretaps on the telephones of Nevada casino owners in the 1960s.
"Sixty-four percent of Americans, a free and very sensible people, support eavesdropping on calls between suspected terrorists abroad and people in the U.S.," Krauthammer retorted. "Why? Because even Democrats know that the once clandestine activities they denounce so floridly are the once obscure answer to the question everyone has been asking: How did Bush keep us safe?"
"Alleged associates of al Qaeda are today's targets of that breathtaking assertion of presidential power," Barr replied. "Tomorrow, it may be your phone calls or e-mails that will be swept up into our electronic infrastructure and secretly kept in a growing file attached to your name." Well, that's a scary prospect, and that's why I'd put specific but reasonable limits on these presidential powers.
Writing in the conservative Weekly Standard, Gary Schmitt, former executive director of the president's Foreign Intelligence Advisory Board, suggested resolving the wiretapping dilemma by "abolishing the Foreign Intelligence Surveillance Act (FISA) and restoring the president's constitutional authority to conduct warrantless searches for foreign intelligence purposes .... Within the executive branch there are now reams of guidelines and teams of inspector generals that make renegade operations improbable or, at least, difficult to keep hidden for very long." He added that Congress, and not FISA courts, should provide the necessary oversight of these intelligence activities.
But opponents of warrantless wiretapping aren't buying that proposal, and I have my doubts about Congress' ability to monitor super-secret eavesdropping because our elected representatives are doing a lousy job of monitoring their own illegal activities and indiscretions.
For example, the Associated Press reported last week that leaders of congressional ethics committees "aren't committing to any investigation of misconduct despite the growing revelations about the favors that lobbyist Jack Abramoff won for clients and the largess he arranged for lawmakers." So much for their ability to police themselves, let alone the murky world of international intelligence.
What the lawmakers can do, however, is to write clear limits and requirements into the FISA legislation, permitting the NSA and other intelligence agencies to act quickly without violating the civil liberties of American citizens.
Because President Bush based his decision to go to war in Iraq on faulty intelligence, and given his continued assertions of unlimited executive power, I think Congress and the courts should exercise their constitutional authority to limit such power. After all, the health of our system of government rests on the checks and balances that our Founding Fathers wisely wrote into the Constitution.
For as the Washington Post warned in a recent editorial, "In a constitutional democracy, laws are meant to be followed until they can be changed - even laws that a president feels encumber his ability to wage war." Upon careful consideration of the pros and cons on this issue, I agree with the Post.
n Guy W. Farmer, a semi-retired journalist and former U.S. diplomat, resides in Carson City.