Bush security policy most affects freedom by Sarah Littman

published December 27, 2005

I'd planned to speak of happier things in 2005's final column, but given the revelation about the president authorizing the National Security Agency to eavesdrop on U.S. citizens without a warrant -- well, it's hard to be lighthearted when this kind of abuse of executive power is being perpetrated by a leader who swore to uphold the Constitution.

True to form, Mr. Bush reacted angrily to criticism of his decision to bypass the 1978 Foreign Intelligence Surveillance Act, which requires security agencies to obtain a warrant from a secret court within the Justice Department when engaging in electronic surveillance on Americans on the grounds of national security.

The 1978 law was passed after Congress learned the White House had moved beyond the accepted practice of eavesdropping on Soviet agents, and that presidents, both Democratic and Republican, had authorized the FBI to tap the phones of hundreds of political activists and celebrities, including Martin Luther King Jr. and Vietnam War protesters.

The special electronic surveillance court is composed of federal judges who are appointed by the Supreme Court's chief justice to oversee wiretap requests. A single judge has the ability to authorize a wiretap if the FBI shows evidence that there is probable cause to believe that a target is affiliated with a foreign power.

In a Dec. 19 conference, the president said his constitutional power as commander in chief and the congressional resolution that authorized the use of military force against terrorists gave him the authority to order eavesdropping without a warrant. Constitutional scholars beg to differ.

Clearly, there is a continued risk of terrorism, and the government needs the ability to rapidly monitor potential threats. But all of us in this country need to take a good, hard, honest look at why Mr. Bush felt compelled to avoid compliance with Surveillance Act -- not only once, in the immediate aftermath of 9/11, but by his own admission, 30 times since then.

The need for speedy action is not a viable excuse when federal law allows the U.S. attorney general to authorize wiretaps without waiting for a warrant, as long as federal agents later present evidence to a judge. Records show that from 1979 through 2001, the special court didn't reject a single warrant in more than 11,000 requests. Since 2001, it has only rejected four of more than 5,200 applications. So what possible justification could there be for this egregious disregard for the law?

Back in 1967, Supreme Court Justice William Douglas, in Katz vs. United States, warned of the problems inherent in the sort of executive authority this president feels is his right:

"Neither the president nor the attorney general is a magistrate. In matters where they believe national security may be involved, they are not detached, disinterested and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the executive branch is not supposed to be neutral and disinterested. Rather, it should vigorously investigate [389 U.S. 347, 360] and prevent breaches of national security and prosecute those who violate the pertinent federal laws. ... Since spies and saboteurs are ... entitled to the protection of the Fourth Amendment. ... I cannot agree that where spies and saboteurs are involved, adequate protection of Fourth Amendment rights is assured when the president and attorney general assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate."

This president clearly refuses to consider himself bound by the rule of law -- and it's not just card-carrying members of the ACLU who are worried. Even conservatives are balking. Bruce Fein, constitutional scholar and former deputy attorney general during the Reagan administration, remarked on National Public Radio that if President Bush continues to maintain that, as a wartime president, he can do anything he wants without regard to the other branches of government, "that is an impeachable offense. It's more dangerous than Clinton's lying under oath, because it jeopardizes our democratic dispensation and civil liberties for the ages. It would set a precedent that ... would lie around like a loaded gun, able to be used indefinitely for any future occupant."

Sen. Arlen Spector, R-Pa., who heads the Senate Judiciary Committee, has said he will hold oversight hearings on the issue. "There is no doubt that this is inappropriate," Spector said.

I hope Rep. Christopher Shays, R-Bridgeport, has the courage to vote for impeachment proceedings. I suspect he won't. But if next year's midterm elections break the Republican stranglehold on Congress, Mr. Bush had better watch out.

I wish all my readers a happy and healthy New Year.

Sarah Littman, who lives in Greenwich, is author of "Confessions of a Closet Catholic," published by Dutton Children's Books.