NSA wiretaps: how can we balance liberty and security?

The New York Times recently revealed a secret presidential order allowing the National Security Agency (NSA) to intercept phone calls and emails between people in America and foreign countries. Immediately the sides formed up in a classic liberty vs. security debate.

It would be easy to dismiss the debate as the fulminations of those who support President Bush at any cost and those who would use any excuse to make him look bad. Indeed, the issue is muddied by the participation of these politicians.

But to dismiss the wiretap issue as mere politics would be a mistake. There is a real security need to track terrorists and the traitors who help them. There is also a real need to protect the liberty of Americans from encroachments in the name of security and the "war on terror."

The security problem as expressed by the administration is that the existing mechanism for getting a wiretap warrant or court order is too slow. By the time the secret Foreign Intelligence Surveillance Court can decide to issue a warrant, desperately important intelligence might have gone over the airwaves and been irretrievably lost.

The administration's solution was to issue a secret executive order authorizing the NSA to monitor phone calls and emails with at least one end of the conversation outside the US, when at least one of the people involved is suspected of terrorist connections. Apparently this order has been in effect since 2002, and the NSA has been busily intercepting messages without warrants ever since.

The danger of this approach to American liberty ought to be obvious. If we allow the government to set the precedent that the need for security ever trumps the guarantees of the Constitution, liberty will be up for grabs. The provisions of the so-called Patriot Act are dangerous enough. For the president to extend those unconstitutional powers even further by executive order is wildly dangerous. It amounts to the president seizing the power to legislate; more, to amend the Constitution unilaterally and even secretly. In my view, that is an impeachable offense.

How can we satisfy the valid requirements of our security services while upholding the Fourth Amendment? Perhaps the problem is manpower: there aren't enough judges on the Foreign Intelligence Surveillance Court. If so, I think we could afford to hire some more judges. They could work in shifts so enough of them are available 24/7 to issue warrants soon enough to be useful.

Or perhaps the problem is that the court's procedures are too cumbersome. It would be better to compromise on the procedures than to scrap the process altogether. For example, maybe we need to lower the bar for "probable cause" for these warrants. There has to be some reasonable basis for suspecting the person being monitored, but it should be possible to write up that basis in a few paragraphs to get the monitoring started in a timely manner.

I can imagine a kind of "hot pursuit" situation that requires an even faster response to newly acquired intelligence. Let's say that a wiretap identifies a new suspect, who hangs up and makes another call immediately. Waiting for a warrant, no matter how fast the process, would possibly cause loss of important information to be revealed in that call. There could be a procedure for recording the call without anyone being able to review the recording until a warrant has been issued. It's even possible that the warrant would be available before the call ended, but the data in the first part of the call would not be lost.

Not being a security expert or a judge, I can't say what form the innovative procedures should take. But it is hard for me to believe that some Yankee ingenuity could not streamline things enough to put valid warrants in the hands of security officers fast enough to satisfy our security needs. We should not have to scrap the Constitution to fight terrorists and traitors.