By Richard White
 

“They who would give up an essential liberty for temporary security, deserve neither liberty or security.”

– Benjamin Franklin[1]

In the aftermath of September 11, a consensus quickly emerged that the tragedies were due in part to a breakdown in intelligence. Leaders from across the political spectrum questioned how al-Qaeda—a known terrorist network—had been able to plan and execute the September 11 attacks without attracting the attention of the CIA, the FBI, the National Security Agency (NSA), the Department of Defense, and other agencies charged with tracking terrorist threats.[2]

Testimony before the two intelligence committees’ Joint Inquiry on the September 11 attacks indicated that significant information in the possession of intelligence and law enforcement agencies was not fully shared with other agencies and that intelligence on potential terrorist threats against the United States was not fully exploited. For many years, the sharing of intelligence and law enforcement information was circumscribed by administrative policies and statutory prohibitions. After the September 11 attacks, a number of statutory obstacles were addressed by the USA-Patriot Act of 2001 and other legislation.[3]

From a civil libertarian point of view, the problem with intelligence sharing—as with intelligence gathering—is its potential for abuse. By its very nature intelligence gathering—or more colloquially, “spying”—involves invasions of privacy that run counter to the Fourth Amendment’s protection against unwarranted government searches.[4]

The 1975-76 Church Committee hearings documented extraordinary federal government abuse of surveillance powers. Examples included the NSA's Operation Shamrock and Operation Minaret, CIA's Operation CHAOS, the FBI's COINTELPRO domestic harassment of dissenters and anti-war protesters that included illegal wiretapping, and the illegal burglaries of the Nixon White House "plumbers."  As a result, Congress in 1978 passed the Foreign Intelligence Surveillance Act, which establishes a legal regime for "foreign intelligence" surveillance separate from ordinary law enforcement surveillance.[5]

For this reason, spying has historically been justified as a tool of national security rather than law enforcement, to be used against foreign governments rather than U.S. citizens. Domestic law enforcement agencies, such as the FBI, who wish to conduct wiretaps or property searches in criminal investigations must obtain warrants and observe other rules of procedure that foreign intelligence agencies such as the CIA do not. The CIA, in turn, is prohibited from engaging in law enforcement or internal security functions.[6]

On December 16, 2005, the New York Times disclosed that President Bush had authorized the National Security Agency to conduct domestic eavesdropping.[7]  The president, confirming the surveillance, said on December 17 that he approved a ``limited'' program of monitoring phone calls, e-mails and satellite communications without court approval.[8] 

On December 22, 2005, the Assistant Attorney General for Legislative Affairs sent both the House and Senate Intelligence Committees a letter explaining that “the President has described certain activities of the National Security Agency that he has authorized since shortly after September 11, 2001. As described by the President, the NSA intercepts certain international communications into and out of the United States of people linked to al Qaeda or an affiliated terrorist organization. The purpose of these intercepts is to establish an early warning system to detect and prevent another catastrophic terrorist attack on the United States. The President has made clear that he will use his constitutional and statutory authorities to protect the American people from further terrorist attacks, and the NSA activities the President described are part of that effort. Leaders of the Congress were briefed on these activities more than a dozen times.”[9]

To justify creating a domestic spying program, the Bush administration is relying on a law Congress passed in the chaotic days after the Sept. 11, 2001, terrorist attacks that authorizes the president to wage war against al-Qaida and its supporters. In doing so, the administration bypassed a secret court system that for nearly 30 years has monitored the government's use of electronic surveillance to gather foreign intelligence on U.S. soil.[10]

Section 2 of the Authorization for the Use of Military Force, a joint resolution passed by Congress September 18, 2001, authorizes the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”[11]

Critics contend that the President’s justification runs counter to the intent of Congress as expressed in Section 1811 of the Foreign Intelligence Surveillance Act limiting electronic surveillance without a court order “to a period not to exceed fifteen calendar days following a declaration of war by the Congress.”[12]  Others disagree, citing the Assistant Attorney General’s letter of December 22, 2005, suggesting the administration complied with Section 1802 authorizing electronic surveillance without a court order for periods of up to one year if the Attorney General notifies Congress.[13]

While the situation is yet to be resolved, it highlights the fundamental problem of homeland security.  Homeland security is a question of trade-offs; security experts must decide to what degree civil liberties should be curtailed in order to strengthen homeland security.[14]