As the year was drawing to a close, we picked up our New York Times and learned that the Bush administration has been fighting terrorism by intercepting communications in America without warrants. It was worrisome on its face, but in justifying their actions, officials have made a bad situation much worse: Administration lawyers and the president himself have tortured the Constitution and extracted a suspension of the separation of powers.
It was not a shock to learn that shortly after the Sept. 11 attacks, President Bush authorized the National Security Agency to conduct intercepts of international phone calls to and from the United States. The 1978 Foreign Intelligence Surveillance Act permits the government to gather the foreign communications of people in the U.S. — without a warrant if quick action is important. But the law requires that, within 72 hours, investigators must go to a special secret court for a retroactive warrant.
The USA Patriot Act permits some exceptions to its general rules about warrants for wiretaps and searches, including a 15-day exception for searches in time of war. And there may be a controlling legal authority in the Sept. 14, 2001, congressional resolution that authorized the president to go after terrorists and use all necessary and appropriate force. It was not a declaration of war in a constitutional sense, but it may have been close enough for government work.
Certainly, there was an emergency need after the Sept. 11 attacks to sweep up as much information as possible about the chances of another terrorist attack. But a 72-hour emergency or a 15-day emergency doesn’t last four years.
The government of a free society does not spy on its citiens. In fact, one of the hallmarks of a corrupt government is that they do spy on, track, and otherwise monitor their citizens. But do not for a moment think that the President is the only villain in this drama. Rather than upholding the Constitution and their oaths of office, Senate lawmakers agreed to a six-month extension of the USA “Patriot” Act’s unConstitutional police powers, supposedly so that the Senate will have more time to negotiate civil rights safeguards in the new year.
The government’s unConstitutional power to seize a company’s sensitive customer data without being subject to traditional standards of judicial review was one of the most controversial issues that federal lawmakers grappled with last year, but that did not stop the Senate from permitting this travesty to continue.
It will get worse before it gets better — if it gets better, which is no certain thing.