A federal judge in Detroit ruled last week that the National Security Agency’s use of warrantless surveillance is both illegal and unconstitutional. The judge’s reasoning was a little quirky for our taste, but we admired her conclusion. The case is sure to climb the judicial ladder, where it should be decided once and for all.
We see the matter in straightforward terms. The executive branch needs 21st-century intelligence tools to thwart terrorism and other international crimes. U.S. law provides an invaluable process for obtaining warrants to conduct high-tech eavesdropping, and the process can and should be followed meticulously.
The Bush administration has been using the British success in foiling a terrorist plot to call attention to that country’s more liberal surveillance laws. But U.S. laws already provide law enforcement and intelligence with plenty of latitude.
The 1978 Foreign Intelligence Surveillance Act allows American agents to eavesdrop first and get a warrant later in emergencies. And the administration has expanded its use of material witness warrants, which allow authorities to detain people for indefinite periods.
The president contends that critics of secret NSA domestic surveillance haven’t grasped the seriousness of the terrorist threat.
“Those who herald this decision simply do not understand the nature of the world in which we live,” President Bush said in reaction to U.S. District Judge Anna Diggs Taylor’s decision from Detroit that he illegally sidestepped the courts and Congress in approving warrantless NSA surveillance.
While the British were able to unearth the plot to destroy airliners traveling from Britain to the U.S., the country’s forgiving surveillance laws don’t seem to have played a role. The British arrests were triggered by a vague tip from a concerned member of the Muslim community. Thereafter, British intelligence conducted months of surveillance. Under the FISA law, it would be simple to obtain the proper warrants to extend such an investigation.
Taylor’s ruling is being challenged by the administration, and the case will now begin its ascent to the court of appeals and eventually, perhaps, the Supreme Court.
Members of Congress from both parties have questioned the scope of the president’s authority to skirt the FISA requirements. Government agents should be required to obey the law and obtain a warrant when they want to intercept domestic phone and e-mail communications.
