The debate on domestic spying contains important considerations of both a legal and normative nature. From the legal viewpoint, the Bush administration insisted that it had the power to authorize the wiretapping program under both the U.S. Constitution and the congressional resolution of the Authorization of Military Force that authorized use of wartime powers against those responsible for the 9/11 terrorist attacks.

The constitutional powers of the U.S. president as commander-in-chief would allow President Bush to pursue, without explicit congressional permission, any enemy operating inside the United States. Additionally, the wartime powers of the president would allow him to bypass the courts to spy on Americans without warrants, a presidential power that not even Congress can restrict, as the president not only has the authority but also the duty to protect the nation. The administration further argued that the congressional resolution on the Authorization of Military Force that passed shortly after 9/11 also granted the president the right to use all "necessary and appropriate force," thereby effectively suspending the FISA requirements that are considered outdated and inappropriate in view of the contemporary war on terror. When President Bush in a televised address admitted that he had authorized domestic, warrantless monitoring of calls involving an overseas party, he defended his actions as crucial to national security.

Opponents argue that the president's expansion of executive power violates constitutionally framed mandates for judicial and congressional oversight.

Congress and the courts have a constitutional right and obligation to provide a check against extra-legal activities in the executive branch. The uncovered domestic spying programs, they claim, violate Fourth Amendment protections against illegal search and seizure. The Supreme Court has likewise held that most surveillance by government agencies must be based on a judicial finding of probable cause of criminal wrongdoing.

Other arguments against domestic spying invoke concerns over two specific federal acts. First, critics say the program violates provisions of the 1978 FISA Act that require warrants. The PATRIOT Act only allows for the collection of data for up to 72 hours before a warrant must be requested from the courts, and the Authorization of Military Force resolution does not give the president the power to bypass this law. Second, because only eight members of the House and Senate were briefed about relevant developments, the NSA program violates the National Security Act of 1947, which requires that intelligence oversight committees of Congress be kept informed of U.S. intelligence activities. Absent such congressional approval, prosecutions of captured terrorists may be jeopardized by defendants' claims that the evidence against them was collected illegally. In August 2006, a U.S. District Court ruled the NSA surveillance program to be unconstitutional. At this writing, an appeal is still pending.

Underlying the legal debate on domestic spying are conflicting positions about its normativity. On the one hand, proponents suggest that special surveillance programs are necessary because of the severity and nature of the current terrorist threat and, moreover, that they have effectively prevented other terrorist attacks on U.S. soil. Under present-day circumstances, they claim, most Americans would agree that some of their rights have to be sacrificed in order to preserve national security. On the other hand, opponents argue measures implemented against terrorist groups should not curb civil rights, which are an essential part of a free and open society. Making exceptions on constitutional restrictions on presidential power in the area of counterterrorism might lead to wrongly justify other special provisions, such as on the use of torture and the indefinite detention of citizens. Modernizing the rules of counterterrorism surveillance in the United States could allow for the use of new means but only within proper limits that prevent innocent citizens from being investigated.

Given the continued anxieties over the terrorist threat and the likewise persistent concerns over civil rights, the debate on domestic spying is likely to stay in the public consciousness for some time in the foreseeable future.

References:

1) Keller, William W. 1989. The Liberals and J. Edgar Hoover: Rise and Fall of a Domestic Intelligence State. Princeton, NJ: Princeton University Press.

2) Morgan, Richard E. 1980. Domestic Intelligence: Monitoring Dissent in America. Austin, TX: University of Texas Press.

3) Posner, Richard A. 2005. Remaking Domestic Intelligence. Stanford, CA: Hoover Institution Press.

4) Risen, James. 2006. State of War: The Secret History of the CIA and the Bush Administration. New York: Free Press.

5) Wong, Katherine. 2006. "The NSA Terrorist Surveillance Program." Harvard Journal on Legislation 43:517-34.

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