It requires congressional, court intervention

Fran Quigley

Indiana's state Department of Education publishes official academic standards for fifth grade social studies instruction. According to these standards, Hoosier students are supposed to learn about the separation of powers between the executive, legislative and judicial branches of the United States government.

That means dusty chalkboard diagrams and crisp PowerPoint displays in classrooms across Indiana introduce 11—year-olds to the checks and balances that distinguish a constitutional democracy from a dictatorship. Patient fifth grade teachers explain to Hoosier children that, in the United States of America, no government official is above the law.

President Bush seems to have missed class that day.

By authorizing a spying program that allows the e-mails and phone calls of innocent Americans to be monitored without court approval, the president has acted far beyond the authority granted him by either the Constitution or Congress. When media reports finally revealed the existence of the National Security Agency (NSA) program after it had been secretly re-authorized more than 30 times without judicial or legislative review, President Bush told a press conference, "Do I have the legal authority to do this? The answer is, absolutely."

Congress and the courts need to act immediately to correct the president's monumental misunderstanding of constitutional government. Congress should launch a full investigation of the spying program and the president's illegal actions. The courts must demonstrate firmly that there are limits to executive power. A Michigan federal court will get that opportunity when it hears a lawsuit filed last month by ACLU on behalf of nonprofit groups and journalists likely targeted by the president-ordered spying.

As reported in recent weeks, the scope of the president's actions is breathtaking. He has created a program of domestic spying that allows the government to monitor any phone call or e-mail it desires, and distribute any information that is acquired, without time limit or court review. The president refuses to disclose the extent of this spying program, but news reports suggest federal agents sift through vast streams of calls and e-mails, potentially invading the privacy of virtually every American.

The president claims that massive spying on Americans is necessary for national security. It is a dubious claim, in light of reports that FBI agents have complained that program leads to mountains of unfiltered and worthless tips that waste resources and time. But even if surveillance were potentially valuable, conversations between Americans and suspected terrorists can already be legally wiretapped under the current Foreign Intelligence Surveillance Act (FISA) law, which allows surveillance to begin immediately in emergencies, with a leeway of three days afterward to get a warrant.

In its 25 year history, the FISA court has approved nearly every warrant the government has ever asked for. And if President Bush were to have indicated to Congress that changes in the FISA law were necessary to protect the U.S. against terrorism, both Democrats and Republicans in Congress insist they would have amended the law.

Instead, President Bush chose to ignore both the courts and the Congress. The president now claims that his program was approved by the 2001 congressional resolution allowing military force in Afghanistan, a theory that is flatly dismissed by legal scholars, nonpartisan analysts and members of the president's own party.

Even one of the administration's key counter-terrorism officials, Deputy Attorney General James B. Cooney, refused to sign off on the program. As then-Supreme Court Justice Sandra Day O'Connor recently wrote in overruling another of President Bush's unconstitutional overreaches, "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

President Bush is not the first president to claim "national security" as justification for this kind of widespread domestic snooping. Richard Nixon used the same rationale to explain away spying on his political enemies. The Cold War was used as the excuse by the Kennedy and Johnson administrations for FBI surveillance on peaceful activists, including extensive wiretapping of Dr. Martin Luther King Jr.

This shameful practice, fully exposed after the Watergate scandal, caused the Foreign Intelligence Surveillance Act to be passed in 1978. The FISA law clearly prohibits presidents from spying on Americans without giving legal justification to a court. It is a law that, like the separation of powers on which our system of government is built, protects both our safety and our liberties.

Congress and the courts should demand that President Bush follow these rules. It is important for Hoosier fifth-graders to understand that no government official stands above the law; we need to make sure our president learns that lesson, too.

Fran Quigley is the executive director of the ACLU of Indiana,, which will host a discussion on domestic spying March 7 at the Indiana Repertory Theatre in downtown Indianapolis.


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