Fighting a war against an amorphous band of terrorists, spread throughout all corners of the world, not identifiable by a single uniform and speaking any number of languages, is a difficult, dangerous and dirty business. Defending the United States from al-Qaida and other terrorist groups intent on assassinating Americans does require special powers.
Congress gave the government those powers a week after the Sept. 11 attacks when it approved the Authorization to Use Military Force. But members of Congress now insist – and they may be right – that those powers did not include the ability to permit unlimited wiretaps and eavesdropping on potentially thousands of Americans' international phone calls and e-mails.
Yet President Bush says it does. And on Monday the president brushed aside bipartisan criticism of the spying and said that he would continue the domestic surveillance program by the supersecret National Security Agency "for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens." The president already has used those powers more than 30 times.
The problem here is that there already is a legal mechanism for spying on people suspected of being terrorists or spies: the 1978 Foreign Intelligence Surveillance Act. It gives an 11-member Foreign Intelligence Surveillance Court the power to issue warrants to agents to permit spying on foreigners and U.S. citizens suspected of espionage and terrorism. The court has approved 5,640 warrants since 2001. It has denied only four. That enough is reason to believe that the government already has sufficient power to conduct its war on terrorism.
Furthermore, although administration officials argue they need the ability to undertake some wiretaps and eavesdropping activities instantaneously, the FISA law permits that. Under the act, the attorney general can authorize a warrantless wiretap for up to 72 hours. The only requirement is that the presiding judge of the court must be notified, and the surveillance must be justified later.
The disclosure of the domestic spying operations raises serious questions about civil liberties in the United States and the balance of powers. By exercising the ability to approve domestic intelligence without a court order, the administration is usurping the power of the judiciary. And the use of spy powers against Americans – legitimate or not – raises valid concerns about Fourth Amendment rights.
Finally, if the administration believes it needs new powers to fight the war against terrorism, it should make its case to Congress. To do otherwise is to spurn the Constitution's balance of powers.