It was bad enough when the New York Times revealed that since early 2002, under an executive order from President Bush, the National Security Agency has been conducting surveillance inside the United States, almost certainly on U.S. citizens, without any sort of warrant approved by any sort of court.
It was doubly disturbing that the president defended this practice and said, in effect, “Don’t talk to me about laws or constitutions, I’ll keep doing it until Congress or a court stops me.”
The Fourth Amendment to the Constitution reads: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
This standard has been refined and (especially as it relates to the drug war) weakened by the courts over the years. But the requirement to get a warrant remains one of the key distinctions between a reasonably free and civil society and an authoritarian or dictatorial regime.
The government already has a special secret court, created 25 years ago by the Foreign Intelligence Surveillance Act, where it can get warrants in intelligence or national security-related cases. That court has turned down only a handful of requests over the years; in 2002 it approved all 1,228 of them. So why skirt this established procedure?
The other concern is that the NSA, reportedly the most sophisticated practitioner of worldwide electronic surveillance in the government, is a military agency that is barred from doing surveillance on U.S. citizens. If its wiretaps or other methods inadvertently turn up a U.S. citizen, it is supposed to scrub its records.
Putting this agency into the domestic surveillance business is bad public policy that blurs the important line between military and law enforcement intelligence. To do so almost certainly (despite parsing by some legal apologists) requires that Congress amend the current law.
Did the president willfully violate both the Constitution and federal statute? Congress and the courts need to investigate this question aggressively. If the people express concern, they will.