An interesting editorial in the NY Times. I don’t agree with it, but I think it’s important to consider what those who agree with the President are saying.
In an effort to control counterintelligence activities in the United States during the cold war, the surveillance act established a special court, known as the FISA court, with authority to issue wiretapping warrants. Instead of having to show that it has “probable cause” to believe criminal activity is taking place (which is required to obtain a warrant in an ordinary investigation), the government can get a warrant from the FISA court when there is probable cause to believe the target of surveillance is a foreign power or its agent.
Although the administration could have sought such warrants, it chose not to for good reasons. The procedures under the surveillance act are streamlined, but nevertheless involve a number of bureaucratic steps. Furthermore, the FISA court is not a rubber stamp and may well decline to issue warrants even when wartime necessity compels surveillance. More to the point, the surveillance act was designed for the intricate “spy versus spy” world of the cold war, where move and countermove could be counted in days and hours, rather than minutes and seconds. It was not drafted to deal with the collection of intelligence involving the enemy’s military operations in wartime, when information must be put to immediate use.
Indeed, it is highly doubtful whether individuals involved in a conflict have any “reasonable expectation of privacy” in their communications, which is the touchstone of protection under both the Fourth Amendment and the surveillance act itself – anymore than a tank commander has a reasonable expectation of privacy in his communications with his commanders on the battlefield. The same goes for noncombatants swept up in the hostilities.
The thing that I’m having a hard time with (and will always have a hard time with) is this idea that warrantless wiretapes essentially deems everybody in this country as “noncombatants swept up in the hostilities.” It’s as if, when we’re at war, all bets are off. But how can we justify continuous surveillance for decades on end. After all, we’ll never destroy the tactic. One can never destroy an idea. And we’ll most likely never be able to bring democracy to the countries who desire (and deserve) it most.
So when will this war end? Or is this a war without end? And if so, are we forever going to be wondering if our “reasonable expectation of privacy” will always be in question?