The False Dichotomy of Warrantless Surveillance

Last Friday, in an all-too-rare effort to fulfill its Constitutional function, the House of Representatives passed legislation that would re-authorize government anti-terrorist surveillance programs, but in a manner that was anything but the now-customary complete capitulation to the White House. The Restore Act, as the amended House bill is known, withholds immunity from lawsuits for telecom providers that have illegally assisted the government in spying on Americans, and requires prior court approval for the surveillance of U.S. residents talking to suspects overseas.

President Bush has repeatedly called on Congress to provide both future and retroactive immunity to telecommunications companies participating in a National Security Agency (N.S.A.) program that conducted surveillance without warrants, claiming that failing to do so is unfair and endangers American lives. As AT&T, Verizon and other providers face several lawsuits for their collaboration with the N.S.A., Mr. Bush has stated that he'll veto any bill which doesn't include immunity. Meanwhile, Republicans on Capitol Hill have pooh-poohed the idea that powers to spy without judicial oversight on U.S. citizens would ever be abused, with Senator Orrin Hatch claiming that only those with an "irrational fear of government" believe that "our country’s intelligence analysts are more concerned with random innocent Americans than foreign terrorists overseas..."

Senator Hatch's statement might be true if it were merely that intelligence agencies faced a choice between monitoring communication about a terrorist threat and listening in on conversations about someone's latest romantic mishap, plans for the weekend or the most recent news from relatives. The fact of the matter is, however, that this framing is woefully incomplete, and omits the very real danger of political spying, of which American presidents - from all ideological backgrounds and both political parties - have taken full advantage whenever they have had the opportunity.

Libertarian writer Julian Sanchez reminds us of this in an excellent article in last Sunday's Los Angeles Times entitled "Wiretapping's True Danger." As he notes, there is a rich and dark history of abusing electronic surveillance for political purposes going all the way back to the 1920s and the Teapot Dome scandal. Presidents from Truman to Nixon were guilty to one degree or another of either directly using the surveillance of American citizens for political gain, or benefiting from its existence. From the article:

The original FISA law was passed in 1978 after a thorough congressional investigation headed by Senator Frank Church (D-Idaho) revealed that for decades, intelligence analysts - and the presidents they served - had spied on the letters and phone conversations of union chiefs, civil rights leaders, journalists, antiwar activists, lobbyists, members of Congress, Supreme Court justices - even Eleanor Roosevelt and the Reverend Martin Luther King, Jr. The Church Committee reports painstakingly documented how the information obtained was often "collected and disseminated in order to serve the purely political interests of an intelligence agency or the administration, and to influence social policy and political action."
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It's probably true that ordinary citizens uninvolved in political activism have little reason to fear being spied on, just as most Americans seldom need to invoke their 1st Amendment right to freedom of speech. But we understand that the 1st Amendment serves a dual role: It protects the private right to speak your mind, but it serves an even more important structural function, ensuring open debate about matters of public importance. You might not care about that first function if you don't plan to say anything controversial. But anyone who lives in a democracy, who is subject to its laws and affected by its policies, ought to care about the second.

Harvard University legal scholar William Stuntz has argued that the framers of the Constitution viewed the 4th Amendment as a mechanism for protecting political dissent. In England, agents of the crown had ransacked the homes of pamphleteers critical of the king - something the founders resolved that the American system would not countenance.

In that light, the security-versus-privacy framing of the contemporary FISA debate seems oddly incomplete. Your personal phone calls and e-mails may be of limited interest to the spymasters of Langley and Fort Meade. But if you think an executive branch unchecked by courts won't turn its "national security" surveillance powers to political ends - well, it would be a first.

With George W. Bush's N.S.A. vacuuming up huge swaths of domestic data - disobeying the spirit if not the letter of the law - it is difficult to regard Senator Hatch's false dichotomy as anything other than hopelessly naive or willfully stupid.