Philadelphia Inquirer
January 5, 2006
by Erwin Chemerinsky

Since 9/11, the Bush administration has engaged in unprecedented violations of liberties, including approving torture and suspending the Constitution through indefinite detentions without judicial review. Each time the violations of rights have come to light, the administration has defended its actions by saying they were essential for national security, they were technically legal, and those who revealed the misconduct and criticize it endanger the country.

Predictably, this is exactly what the President has said since the New York Times revealed that he authorized the National Security Agency to monitor, without judicial warrants, some Americans' conversations with those in foreign countries.

Not only do these arguments have no merit. They miss the crucial point: The Constitution is a reminder that the ends don't justify some means, and warrantless spying on Americans' conversations just isn't acceptable.

The claim that the warrantless eavesdropping is necessary for national security ignores how easy it is for the administration to get warrants in such circumstances. In 1978, Congress enacted the Foreign Intelligence Surveillance Act (FISA) and created a new court, the Foreign Intelligence Surveillance Court, to approve warrants when the federal government says they are needed to gather information related to foreign activities. FISA made it much easier for the government to get warrants, no longer requiring probable cause of criminal activity, but instead requiring only that the government show a reasonable likelihood that foreign intelligence information would be gathered.

A central aspect of the Patriot Act, adopted in 2001, was making it even easier for the government to obtain FISA warrants and allowing the sharing of information with law enforcement agencies. Statistics show that more than 99 percent of all government requests for FISA warrants have been granted. In light of this procedure, it is not credible for the President to claim that obtaining warrants was an obstacle or that warrantless eavesdropping was necessary for national security.

The President's defenders claim that technically his actions were legal in that the Fourth Amendment does not apply to government actions outside the United States. Assuming that the calls were physically intercepted in foreign countries, the claim is that the Fourth Amendment didn't apply at all.

This argument, though, ignores that the Supreme Court has said that the Fourth Amendment protects a reasonable expectation of privacy. Every American surely has a reasonable expectation that calls or e-mail will not be monitored without prior judicial approval in the form of a warrant.

Attorney General Alberto Gonzales said the President had the power to do this pursuant to Congress' authorization for the use of military force following 9/11 and under inherent executive power. No court, however, ever has said that Congress or the president can suspend the Fourth Amendment, which requires a warrant for any search, including electronic eavesdropping by the government. Quite the contrary: In 1972, the Supreme Court expressly rejected President Nixon's claim of inherent presidential power to engage in warrantless wiretapping for security purposes.

Perhaps most distressing is the attempt to brand those who revealed the illegal surveillance as disloyal and a threat to national security. This is a familiar refrain from the Bush administration when its violations of fundamental liberties are exposed. In December 2001, then-Attorney General John Ashcroft said that those "who raise phantoms of lost liberties" are giving aid and comfort to the enemy.

But the American Constitution did not create a benevolent ruler and insist that the people place blind trust in his choices. A democracy requires that the people know what their government is doing. It is despicable for the administration to try and silence its critics by branding them as traitors or as threatening national security.

Early in the 20th century, in a case ironically involving wiretapping, Supreme Court Justice Louis Brandeis remarked that the greatest threat to liberty will come from government officials claiming to be acting for noble purposes. He explained that people born to liberty know to resist the tyranny of despots. The insidious threat to liberty, he said, would come from well-meaning people of zeal with little understanding of the Constitution. Louis Brandeis did not know George W. Bush or those in his administration, but he could not have selected better words if he had.

Erwin Chemerinsky is the Alston & Bird professor of law and political science at Duke University.