Warrant-less spying program deserves the dial tone

Eavesdropping on terror suspects is always justifiable, but not without oversight to limit spying on innocent people

Tuesday, March 28, 2006 President Bush believes he can secretly spy on American citizens -- including some with Oregon connections, it seems. It's part of his theory of inherent presidential authority, and it dearly needs challenging.

A lawsuit filed in Portland federal court appears to have hard evidence of warrantless spying on U.S. citizens, as The Oregonian's Ashbel S. Green reported Monday. The lawsuit asserts that the National Security Agency eavesdropped on phone calls between two U.S. lawyers and a member of an Islamic charity based in Ashland.

The plaintiffs want the courts to declare the warrantless wiretapping program illegal. Such a ruling would be a welcome rebuke of the Bush administration's overreach in this area.

More important, it would reaffirm for citizens a basic Fourth Amendment right: Under the Constitution, Americans cannot be spied on by their own government without due process.

The administration has claimed sweeping powers for itself since Sept. 11, 2001. Among them are the right to detain American citizens indefinitely without a trial, and the right to detain foreigners without any meaningful review of their captivity. Today, in fact, the Justice Department is expected to argue before the Supreme Court that the federal courts should have no oversight role in the treatment of Guantanamo detainees.

The high court has shown a deep lack of appreciation for such arguments in the past. If the current judges respect recent precedent, their skepticism about presidential power is likely to continue -- particularly in cases involving U.S. citizens. As Sandra Day O'Connor wrote for an 8-1 majority in a terror case two years ago, "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

The issue of wiretapping deserves similar scrutiny. There's no question that intelligence agencies need to be able to spy on people who may be directly linked to terror plots. However, the feds already have this power, under a law passed by Congress in 1978. They simply need to get approval from a secret court -- and they can get approval retroactively, if a case is particularly urgent.

The law on the books strikes a fair balance between national security and individual liberties: The FBI can listen to your phone calls, but only with court oversight. Anything less is just spying in the name of expedience rather than justice.

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