Warrantless tapping of Americans’ telephone calls is unacceptable

Sept. 11, 2001, was the most tragic and horrific event to take place in modern American history. However, it should not serve as the administration’s free pass to trample upon the rights and liberties of American citizens, under the guise of “national security.”

Without a doubt, there are steps that must be taken to make America safer and to prevent the occurrence of another terrorist attack. However, we question many of the tactics used by the administration purportedly to achieve this goal.

We were surprised to learn from newspaper reports, and at the same time as the rest of the American public, that our president had authorized the National Security Agency (NSA) to conduct warrantless searches of Americans’ telephone calls and other electronic activity.

Pursuant to this program, the NSA conducts surveillance on domestic and international phone calls without first obtaining a court authorization, which is, by law, defined as a felony. The necessity of these searches is not the crux of the issue; the problem that exists is that legal standards that form the basis of the American system of government, and the Constitution that underpins the very essence of our way of life, are being violated. We must always be on guard to protect our nation against terrorists and protect our constitutional rights — the two are not mutually exclusive.

In America, we are bound by the rule of law, but this premise has been diminished under the administration, which has instituted policies that negatively affect individual liberties and give authorities unprecedented power over the general public. All of these actions have been in the name of “preventing terrorist activity” and “protecting national security,” but many of the broader powers granted to government officials seem unrelated to terrorism and are instead a means by which the government can gain information about regular American citizens. As a result, the president has put the nation on a crash course toward a major constitutional confrontation between Congress and the Executive branch.

In the ’70s, Congress enacted the Foreign Intelligence Surveillance Act (FISA), which serves as the exclusive means by which warrants are obtained in intelligence-gathering situations. The heart of FISA is its provisions dealing with wiretapping. Its very essence rests in its requirement that requests for intelligence surveillance are presented to an impartial judge who determines whether there is sufficient cause to grant the request.

The president claims that he is able to ignore these laws because of the war powers granted to him. However, there are provisions in FISA that specifically state procedures to follow in times of war.

The argument that the FISA court is not set up to handle the new tactics necessary in the war on terrorism is equally disturbing. The FISA court was created to oversee surveillance procedures, has rarely denied a warrant request and could have been revamped by Congress if Congress had been asked.

When questioned about why the president did not simply ask Congress to amend FISA to suit the needs of the program, the response was that the administration knew that we would say no. Unfortunately, the administration refuses to provide sufficient information to Congress, so we are unable to determine if Congress would deny the request or grant the administration the relief it seeks because we are still, in large part, unaware of what this program entails.

However, the aspects that have been made known indicate a disregard for not only FISA but the Constitution and our system of checks and balances as well. And what we, as members of Congress, know about the program does not, to a large extent, exceed what the American public knows because there has yet to be full disclosure of the program to the entire Congress. Moreover, the Republican majority has refused to conduct investigatory hearings that will allow us to get to the bottom of this controversy.

Telling the House and Senate party leaders and the chairman and ranking members of the two intelligence committees about the program does not constitute Congressional oversight or approval as the administration implies. Moreover, it is a far cry from the system of checks and balances put into place by the Framers of the Constitution and the democratic ideals that are the backbone of our society.

If not for The New York Times’ breaking this story in December 2005, after being persuaded for almost a year to keep quiet, and for last month’s revelation regarding the expansive nature of the program as it relates to our telecom companies, almost all members of Congress would still be in the dark.

As members of Congress, but more so as Americans, we take seriously our need to defend our nation from terrorist attacks. However, we are fully aware that this must be done while honoring the laws and safeguards that make America an internationally recognized beacon of freedom and democracy.

When we implement polices and procedures that are not in line with our constitutional values, we must then ask the question if we are truly winning the war on terrorism. We say that we are a country that believes privacy is important and that we won’t trample on the rights of our citizens unless we have legal authorization to do so; yet policies like the NSA surveillance program undermine these beliefs.

If we allow the threat of terrorism and the presence of those who wish to do us harm to cause us to place the constitutional privacy of our own citizens at risk, they win and we lose.

Thompson is the ranking member of the House Committee on Homeland Security.