CAN CONGRESS VALIDATE THE PRESIDENT'S USE OF WARRANTLESS WIRETAPPING?

On August 4, before adjourning for a month-long recess, Congress quickly ratified, 60-28 in the Senate and 227-183 in the House, President Bush’s once-secret program (which had been exposed by The New York Times in December 2005) to allow the National Security Agency to eavesdrop without obtaining a court warrant on telephone and e-mail conversations between people in the United States and “a person reasonably believed to be located outside the United States.” The Bush Administration has assured us that we need have no fears regarding this ambiguity. Attorney General Alberto Gonzales, who can now issue surveillance orders without judicial approval, but cannot remember meetings he has attended or the subjects discussed, is required by the new statute to report “incidents of noncompliance.”
The requirement that one of the parties is “reasonably believed” to be outside the U.S. implies the assumption that at least one person whose communication is being intercepted is not a U.S. citizen. Of course, this may not be true. It doesn’t matter. The Constitution contains no claim that the government may violate the rights of non-citizens or, for that matter, deny non-citizens due process of law or incarcerate them indefinitely without charges, trial, legal representation, and the presentation of evidence. American citizenship is not a prerequisite for the enjoyment of basic rights in the United States.

Congress’s rubber-stamping of the President’s long-standing independent policy, bearing the Orwellian title of the Protect America Act of 2007, may have been in response to the possibility that several federal courts might conclude that the NSA’s surveillance program violated the Foreign Intelligence Surveillance Act. (As a political compromise, the new law expires in six months, a curiously brief period in which to protect America, which was adopted to appease some of the doubting Democrats.)
For all practical purposes, the NSA can now intercept your communications at any time and without court approval. Based on American history and human nature, nothing can be more certain than that zealous spying will invade private protected speech and conduct. The Senate Judiciary Committee has repeatedly requested the Bush Administration to provide legal justification for its warrantless wiretapping program, most recently subpoenaing the National Security Agency, Justice Department, White House, and Office of the Vice President for information, setting August 20 as the return date for the subpoenas. No federal officials have as yet responded.
To allow the government to invade our privacy without a demonstration in court of a vital security need is to denigrate the right of privacy. The fact that this right is not mentioned in the Constitution is a bogus argument against it. Neither are the right of marriage, the right to vote, political parties, judicial review, and other rights and institutions that we consider fundamental in American government.
In 1890, the Harvard Law Review published an essay, “The Right to Privacy,” by Samuel D. Warren and Louis D. Brandeis, that became the classic statement of privacy as a fundamental right. Of course, Warren and Brandeis could not then imagine the importance of what was then the recently-invented telephone or of computer communications a century later. Nevertheless, their claim for a right of privacy remains valid for present-day communications. These very brief extracts demonstrate the tone and relevance of the article:
“The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others….The protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone….The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality….
“We must…conclude that the rights, so protected, whatever their exact nature, are not rights arising from contract or from special trust, but are rights as against the world; and…the principle which has been applied to protect these rights is in reality not the principle of private property, unless that word be used in an extended and unusual sense. The principle which protects personal writings and any other productions of the intellect or of the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection.”
Thirty-eight years later, now-Justice Louis Brandeis applied the doctrine to the interception of telephone messages: “The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them on any subject, and although proper, confidential, and privileged, may be overheard. Moreover, the tapping of one man’s telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping.”
The right of privacy was finally acknowledged in 1965, when the Supreme Court struck down a Connecticut law prohibiting the possession, sale and distribution of contraceptives to married couples. Justice Douglas’s opinion for the Court awkwardly placed the right in the “penumbras” and “emanations” of a number of Bill of Rights guarantees. Justice Goldberg relied in part on the Ninth Amendment’s reference to “other rights retained by the people.” Justice Harlan argued that the liberty clause of the Fourteenth Amendment barred state conduct inconsistent with a government based “on the concept of ordered liberty.” It is clear that the Fourth Amendment’s prohibition of “unreasonable searches and seizures” was prompted by the opposition to warrantless searches conducted in the colonies by the British Empire.
Two years later, the Supreme Court concluded that the Fourth Amendment’s prohibition of “unreasonable searches and seizures” applied to electronic surveillance as well as physical searches. In 1972, the Court held that the Fourth Amendment required a court order for domestic surveillance. The right of privacy has become so well established that it is difficult to imagine any present public figure, except for never-Justice Robert Bork, denying that the American people possess that right.
Were a Justice Brandeis sitting on the Supreme Court today, one can imagine how he would characterize the improper interception of computer and telephone communications. According to a report issued by the Administrative Office of the United States Courts, state and federal courts authorized 1773 interceptions of wire, oral, and electronic communications in 2005. Only one application was denied by the courts. It was revealed in 2005 that the National Security Agency had purchased over 1.9 trillion call-detail records of phone calls made after September 11, 2001. The almost-certain result of the Protect America Act will be an accelerating invasion of the right of privacy.

The right to privacy, as formulated by Warren and Brandeis and later incorporated into constitutional principle, does not deny the right of the government to obtain a valid court warrant in support of a vital national interest. It rejects the unprincipled and indiscriminate use of warrantless wiretapping and surreptitious recording of private conversations in which this Administration has long engaged. Those who continue to believe in the right of privacy must condemn the cowardice of Congress in legislating its support for the continued unguarded interception of private communications without a court order. What was unconstitutional when undertaken by President Bush remains unconstitutional when condoned by Congress.