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Limits to power

Restrictions on domestic spying were put in place for a reason

YOUR E-MAIL ALERTS

George W. Bush
National Security Agency (NSA)
Acts of terror
Espionage and Intelligence

It's an old argument. Back during the Vietnam War, government photographers went to the anti-war demonstrations and took pictures of the demonstrators. Protest leaders thought, probably correctly, that their phones were tapped. Even I, a reporter covering the protests, heard some odd clicking noises when I picked up the phone to make some calls. And, of course, FBI chief J. Edgar Hoover, who made his own laws, eavesdropped on Martin Luther King Jr., among others, though we didn't know it at the time.

Outside the law? John Mitchell, who was President Richard Nixon's Attorney General, argued that the government didn't need a warrant to tap the phone of any political dissenter it thought was a threat to national security, which certainly does sound like the secret police at work. But in 1972, the Supreme Court ruled 9-0 that Mitchell was wrong. Justice Lewis Powell, a Nixon appointee, wrote for the unanimous court that the Fourth Amendment to the Constitution protects Americans from "unreasonable searches and seizures" and that that freedom "cannot be properly guaranteed if domestic security surveillances are conducted solely at the discretion of the executive branch."

President Bush obviously thinks the court was wrong, since he ordered the National Security Agency (NSA) in 2002 to begin eavesdropping on American citizens without a court-issued warrant.

In 1978, after Congressional investigations of the CIA, Congress passed the Foreign Intelligence Surveillance Act, which set up a secret, special court inside the Justice Department to issue warrants for this kind of spying. President Bush didn't use that court. He says he thought it was too slow.

But Mr. Bush, throughout his time in office, has taken a large view of the powers he has. Thomas Mann of the Brookings Institution, says, "President Bush has the most expansive conception of presidential authority" of any modern president, and "He has decided he has the power to ignore such statutes if he judges it is in the interest of the country." Courts and Congress, apparently, don't count.

At his Monday news conference, one reporter asked the president, "If the global war on terror is going to last for decades, as has been forecast, does that mean we're going to see, therefore, a more or less permanent expansion of the unchecked power of the executive in American society?" The president bristled: "I disagree with your assertion of unchecked power." Congress had been briefed, he went on, though apparently not most congressmen, and Bush added, "To say 'unchecked power' basically is ascribing some kind of dictatorial position to the president, which I strongly reject."

But at other times, he seems to want to be the one man in charge. Defeat, he said in a recent speech, is something he would not allow. If Congress voted for withdrawal, would he defy it?

Mr. Bush always says he's acting to save American lives. But there are other things at stake too.

America isn't a country united by ethnicity the way, say, Japan is, the way France used to be before immigrants from former colonies made its population more diverse. What unites us, what has always united us, is a set of values, a piece of paper -- OK, parchment -- called the Constitution. If we chip away at that, we make America less American. If we lose our freedom to talk openly on the telephone, if we know the government can make the library tell it what books we are reading, if our government can hold a U.S. citizen for years without charging him with any crime, we become less American, less free. And yes, history lovers, Lincoln abolished some basic rights during the Civil War, but maybe that was his one mistake.

Would you rather feel safe and less free? Or free, but in more danger? Different Americans will answer differently. Democratic Sen. Russ Feingold of Wisconsin said, "I can't imagine a more shocking example of an abuse of power, to eavesdrop on an American citizen without first getting a court order based on some evidence that they are possibly criminals, terrorists or spies." Giving up values like "freedom, justice, and privacy," he said, plays into the hands of terrorists. On the other hand, Republican Sen. Trent Lott of Mississippi told the Washington Post, "I don't agree with the libertarians. I want my security first. I'll deal with all the details after that."

Where do you stand?

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