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Is the Government Listening?

The expansion of domestic spying after 9/11 raises some thorny constitutional issues.

By Patricia Smith

Every hour, the National Security Agency silently monitors millions of telephone calls and e-mails. The agency is so secretive that for decades the government denied its existence and observers joked that NSA stood for "No Such Agency."

In the last few months, the NSA has taken center stage in a political firestorm. In December, The New York Times reported that in the months after Sept. 11, 2001, President Bush authorized the NSA to eavesdrop on Americans suspected of ties to Al Qaeda without first obtaining warrants.

As a result, hundreds, perhaps thousands, of people within the U.S. had their international phone calls or e-mails monitored.

Bush's actions raise several critical constitutional issues. How far does presidential authority extend, particularly when it comes to national security? Does the President have expanded powers during wartime? What is the extent of constitutional protections against "unreasonable searches and seizures" in the Fourth Amendment? And the biggest question: How does the government balance its responsibility to defend the nation from terrorist attacks and other threats to its security while protecting the rights of its citizens?


President Bush has strongly defended his actions. "The NSA program is a necessary program," he said in January. "I was elected to protect the American people from harm. And on Sept. 11, 2001, our nation was attacked. And after that day, I vowed to use all the resources at my disposal, within the law, to protect the American people, which is what I have been doing and will continue to do."

The administration has relied on an expansive interpretation of presidential power, which, it believes, gives it authority for its actions. Not all of its interpretations, however, have been accepted by the courts and legal scholars. The administration argues that, beginning in the 1970s, Presidents have ceded some of the legitimate power of the office in response to the abuse of presidential power by Richard Nixon during the Watergate scandal. Now, however, the White House says that the attacks of Sept. 11, 2001, and the continuing threat of terrorism, make it especially critical that the full power of the presidency be restored and exercised.

The bedrock source for presidential authority is considered to be Article 2 of the Constitution, which describes the "executive power'' of the President, including his authority as Commander in Chief of the armed forces. The White House is also citing a congressional resolution passed in the days after September 11 that authorized the President to use "all necessary and appropriate force" to fight those responsible.

Bradford Berenson, who served as associate counsel to President Bush from 2001 to 2003, says intelligence gathering on an enemy is clearly part of the President's constitutional war powers. "It's easy now that four years have passed without another attack to forget the sense of urgency that pervaded the country when the ruins of the World Trade Center were still smoking," he says. But Jeffrey H. Smith, who served as CIA general counsel in 1995 and 1996, isn't so sure. "Clearly the President felt after 9/11 that he needed more powers than his predecessors had exercised," he says. "He chose to assert as much power as he thought he needed. Now the question is whether that was wise and consistent with our values."

From Adams to Bush

This tug of war between presidential authority and citizens' rights is hardly new. Presidents as far back as John Adams have felt that they had not only a right but a duty to assert expanded powers when the U.S. faced a threat to its security. In many cases, their actions were later repealed or struck down by the courts.

Alan F. Westin, a privacy expert and professor emeritus of public law and government at Columbia University, says most people accept that liberties might be curtailed under special circumstances like war, but historically, wartime restrictions have been understood to be temporary.

"Now we're in a permanent war" against terrorism, Westin says. "The administration says again and again that this is a permanent problem."

Polls suggest that Americans are divided over whether President Bush has the authority to order eavesdropping without warrants; the issue seems to provoke very different reactions depending on how it is presented.

The constitutional force counterbalancing the President's authority in this area is the Fourth Amendment, which protects Americans from "unreasonable searches and seizures," and has generally been interpreted to mean that authorities must obtain court-issued warrants before any monitoring.

"The prohibition against government eavesdropping on American citizens is well-established and crystal clear," says Ann Beeson, associate legal director of the American Civil Liberties Union, which has filed a lawsuit in this case. "President Bush's claim that he is not bound by the law is simply astounding. Our democratic system depends on the rule of law, and not even the President can issue illegal orders that violate constitutional principles."

The NSA was created in 1952 to spy on foreign enemies. Its monitoring capabilities were never intended to be directed inward. Today, with people expressing their innermost thoughts in e-mails, posting their medical and financial records on the Internet, and chatting away on cell phones, the agency can virtually get inside a person's mind.

A 1978 law passed in the wake of Watergate was designed to prevent American intelligence agencies from improperly monitoring American citizens. It requires the NSA to obtain a warrant from a special court.

While this court has rarely turned down warrant requests (it has granted about 19,000 and rejected just five), some officials say the numbers are misleading because the government withdrew or modified applications when it appeared the court might reject them. They also say that there are situations in which delaying monitoring for even a few hours while waiting for a warrant could result in the loss of critical intelligence that could prevent an attack.

The buzzword today in national-security circles is "data mining"—digging deep into piles of information to look for patterns or clues to possible threats. Rather than monitoring a dozen or so people for months at a time, intelligence agencies can listen in on hundreds, perhaps thousands, of people for shorter periods of time to try to determine who poses potential threats.

General Michael V. Hayden, former director of the NSA and the nation's second-ranking intelligence official, defends the program. "Clearly, not every lead pans out from this or any other source," he says, "but this program has given us information that we would not otherwise have been able to get."

Striking a Balance

The issue of how to balance the nation's security with the protection of civil liberties came up repeatedly last month at Senate confirmation hearings for Supreme Court nominee Samuel A. Alito Jr. "This hearing comes at a time of great national concern about the balance between civil rights and the President's national-security authority," said Senator Arlen Specter, a Pennsylvania Republican and chairman of the Judiciary Committee.

To explore this subject, the hearings turned to a 1952 Supreme Court case that involved the actions of President Harry S. Truman during the Korean War. When American steel workers threatened to go on strike, Truman cited his powers as Commander in Chief to seize the steel mills to prevent any disruption to the war effort. The Court ruled that Truman had overstepped his authority.

Specter quoted from that ruling a statement that resonates today in thinking about balancing national security and civil liberties: "What is at stake is the equilibrium established by our constitutional system."