Sustainable Democracy

On Sunday, 5 August President Bush signed legislation to extend the powers of the government to conduct wiretaps without warrant. This seems to primarily target phone switches in the US that service international calls, both international-to-domestic and international-to-international. The calls to be targeted by the NSA would be those calls which are between other foreign nations. There is also a push to put much more of this program under the supervision of the already controversial and distrusted Alberto Gonzales.

Wiretapping has a long and colorful history. Most notably it gained popularity and support after being used to gather evidence to convict powerful Mob bosses. However, the practice of listening in to others has always been under very strict guidelines and suspicion in the criminal justice system. It has generally been very difficult to obtain permission to tap phones for very good reasons. Judges are afraid of the 4th Amendment. Not because they dislike it, but because it presents a very clear and correct limit to how searches and surveillance can be conducted. They are afraid of the consequences of stepping over that line.

To be clear, this is what is stated by the 4th Amendment:

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.
– From Find Law

It has some rather specific things to say about warrants for searches.


I will not disagree that the world is dangerous. Terrorists are indeed out there. Our intelligence agencies also have a long history of intercepting, stealing, and monitoring foreign conversations. In fact, phone taps and various audio bugs were a favorite method of the CIA for collecting intelligence because it puts agents at more minimal risk than direct collection. Although, it is important to note, when the CIA does this in foreign nations it is illegal. If they are caught they have to deal with local authorities (although often with considerable diplomatic support).

Monitoring communications that pass through our own nation are obviously different. However, we did create a secret court, FISA, to deal with sensitive matters involving activities or communications occurring in our country. A court which has been criticized by some politicians for allegedly simply rubber stamping most warrants with little review. It would seem like this would be an easy avenue to use, unless what you want to do fly in the face of what even those judges are ready to approve in secret.

I am not proposing any conspiracy. The agencies of our government are filled with thousands of rational people, and many of these people agree with and have called for these measures. And the majority of these rational people probably want to use these powers in legitimate ways for our security. However, there is a large discrepancy between what a security professional will approve of for safety and what the average citizen is willing to accept as reasonable. More and more, the average citizen is becoming more fearful of what their government knows, or could shift its priorities to find out. As set by our Founding Fathers, this is not right.

Our government should fear the power and secrets of citizens. The robustness of democracy is the opaqueness of the populations minds and activities when they are not under direct suspicion. Every person wants to be safe. But should we directly police the world to ensure safety?

I despise terrorists and want them rooted out and destroyed. At the same time though, I do not want to have any fear that I really don’t know what my nation does to protect me. I want to know that there is a review process, even a secret one, to enable searches for specific information. Even if the powers granted are used in very right meaning ways it sets the precedent to allow warrantless surveillance. Any such precedent should not be taken lightly, even when considering only international phone switches. It may not be a one-way slippery slope, but condensing a great deal of power in one place has historically been exactly what we attempt to prevent.

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