For those concerned with privacy, the “war on terror” (setting aside the obvious complaint that a country cannot be at war with an expression) raises a very difficult dilemma: Is it appropriate, in the interests of national security, to allow the government, say through an agency like the NSA, to engage in warrantless surveillance of U.S. nationals it believes (but cannot for any number of reasons demonstrate) may be involved with terrorists in some capacity?
The stakes of this dilemma have just been raised. A recently released report claims that the National Security Agency (NSA) has been secretly collecting records of ordinary citizens’ domestic telephone calls. Apparently, the purpose of this program is to create a database of all of the calls made within the United States. President Bush defended this program by denying that the U.S. Government is interested in interfering with the lives of average, everyday Americans. The purpose of this new NSA program, Bush insisted, is to identify al Qaeda cells that might otherwise remain furtive. Senator Patrick Leahy of Vermont viewed this defense as somewhat laughable, pointing out that a democratic government, representing free and equal citizens, has “a duty to answer to Americans [about] what [it] is doing.”
The debate about this new database initiative is eerily similar to the debate on warrantless wiretapping that has been raging for some time. The technical details of the old NSA program—the domestic eavesdropping program—and its lawfulness have both been the subject of significant debate. The Bush Administration has remained mum about precisely what types of communications the NSA is targeting and about what technologies are being deployed in the process. And yet given the recent class action lawsuit against AT&T, which alleges that the company has been surreptitiously aiding the NSA in violation of federal law, it would seem at least plausible to assume that the NSA has tapped into the fiber optics networks of one or more of the dominant telephone service providers. (Even if true, this does not answer the question that worries so many: How does the Government decide which Americans to target for further scrutiny?)
The Bush Administration has responded to the class action suit against AT&T by claiming it should be dismissed, on the theory that allowing the suit to go forward would require revealing state secrets. Perhaps the Administration is right about that. But one of the things that have been lost in the shuffle is what role the Fourth Amendment plays in the debate about warrantless surveillance. At the end of the day it may be necessary, if we are to effectively fight terrorists living within our midst, working alongside us, to exploit the plasticity in the Fourth Amendment. Perhaps in times like this some forms of warrantless surveillance are reasonable. But that does not mean that the Administration should be the only branch of government able to oversee such measures. When constitutional rights are potentially imperiled, it would seem that unilateralism on the part of the Executive Branch is the last thing that a flourishing democracy should tolerate.