Presidential Snooping Damages the Nation

Back in the 1930s, when confronted with clear evidence he had violated the law, Georgia's then agriculture commissioner and gubernatorial candidate Eugene Talmadge popped his bright red suspenders and dared those accusing him of corruption to do something about it, declaring, "Sure, I stole, but I stole for you." He was elected Governor in 1932. Accused of breaking the law in the current debate over electronic spying, President George W. Bush has, in his own way, dared the American people to do something about it. For the sake of our Constitution, I hope they will.

Let's focus briefly on what the President has done here. Exactly like Nixon before him, Bush has ordered the National Security Agency (NSA) to conduct electronic snooping on communications of various people, including U.S. citizens. That action is unequivocally contrary to the express and implied 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. General Michael Hayden, a former director of the NSA and now second in command at the new Directorate of National Intelligence, testified to precisely that point at a congressional hearing in April 2000. In response, the President and his defenders have fallen back on the same rationale used by Nixon, saying essentially, "I am the Commander in Chief; I am responsible for the security of this country; the people expect me to do this; and I am going to do it." But the Supreme Court slapped Nixon's hands when he made the same point in 1972. And it slapped Bush's hands when, after 9/11, he asserted authority to indefinitely detain those he unilaterally deemed "enemy combatants"--without any court access.

Bush's advocates also argue that the congressional resolution authorizing military force in Afghanistan and elsewhere--to bring to justice those responsible for the 9/11 attacks--authorized those no-warrant wiretaps. But there is absolutely nothing in the clear language of that resolution or in its legislative history suggesting that it was intended to override specific federal laws governing electronic surveillance. If Bush succeeds in establishing this as a precedent, he will have accomplished a breathtaking expansion of unilateral Executive power that could be easily applied to virtually any other area of domestic activity as long as a link to national security is asserted.

Finally, presidential defenders have argued that efficiency demands bypassing the courts. There again, the clear language of the law does them in. Even pre--Patriot Act law provided a very robust mechanism through which a President, facing what he believes is such an emergency that the short time needed to secure court approval for a wiretap would obviate the need for one, can order a tap without prior court approval as long as he eventually gets an O.K. within three days. If that degree of flexibility does not suit a President, it is hard to imagine what provision would. And if the President thought the law governing eavesdropping was misguided or impractical, he should have proposed amendments.