Bob Barr

To Tap Calls from Abroad, the Power Is Too Broad
Letter to the Editor: The Wall Street Journal
August 16, 2007

The upshot of your commentary, "Reason and Wiretaps" (Aug. 8) is that the legislation amending the Foreign Intelligence Surveillance Act (FISA) was as much a defeat as a victory for the Bush administration, which brought intense pressure on the Congress to pass the legislation. In fact, the Congress gave the administration virtually everything it was asking for -- much more than the administration publicly said it was seeking. Were the vice president less taciturn than we know him to be, cartwheels rather than the dour analysis offered by the Journal would have been in order.

Thanks to the fact that a majority of members of Congress apparently cared more for starting their August recess on time than for protecting the Fourth Amendment-based privacy rights of the citizens they represent, this administration now is able to intercept any telephone or email communication by anyone in this country, based on nothing more than an assertion that it believes one of the parties is overseas. No evidence or belief that one party to such conversations is a known or suspected terrorist -- the rationale for the legislation that the administration declared publicly -- is needed.

The fact of the matter is, and contrary to the apparent belief of the writers of the Journal's pro-surveillance missive, pre-amendment FISA clearly required that before the government could lawfully intercept a communication of a U.S. citizen in this country, it had to obtain a court order from the secret FISA court. This requirement was not a figment of some liberal, anti-war lawyer's imagination. It was a clear provision in the 1978 law; so clear, in fact, that then-NSA Administrator Gen. Mike Hayden testified in April 2000 before the House Intelligence Committee that the government not only must secure warrants for such intercepts, but always had and would do so, because the law required it. Of course, we now know this president decided in late 2001 he would ignore this requirement of the law -- not seek at the time to change it if he believed it to improperly limit his power as "commander in chief," but ignore it.

Now, the president can surveil Americans' international calls and emails at will. You laud this change in the law as a needed aspect of being a "commander in chief," and as a way to avoid the pesky involvement of the federal courts in ensuring that the guarantees in our Bill of Rights actually mean something. But these new and expanded surveillance powers are breathtakingly broad.

Bob Barr
Atlanta

Bob Barr occupies the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union Foundation.