TIME MAGAZINE: "Has Bush Gone Too Far?"

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Sun Jan-01-06 01:24 PM
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TIME MAGAZINE: "Has Bush Gone Too Far?"

Sunday, Jan. 01, 2006
Has Bush Gone Too Far?
The President's secret directive to let the NSA snoop without warrants sets off a furor
By RICHARD LACAYO

In the aftermath of the Sept. 11 attacks, White House officials were haunted by two questions. Were there other terrorists lying in wait within the U.S.? And, given how freely the 19 hijackers had been able to operate before they acted, how would we know where to find them?

It didn't take long before an aggressive idea emerged from the circle of Administration hawks. Liberalize the rules for domestic spying, they urged. Free the National Security Agency (NSA) to use its powerful listening technology to eavesdrop on terrorist suspects on U.S. soil without having to seek a warrant for every phone number it tracked. But because of a 1978 law that forbids the NSA to conduct no-warrant surveillance inside the U.S., the new policy would require one of two steps. The first was to revise the law. The other was to ignore it.

"We have the remarkable spectacle of a wartime President who, by a series of doubtful legal strategies, has squandered his credibility in the federal courts," says Eugene Fidell, a Washington lawyer who heads the National Institute of Military Justice. "The judges are in as grumpy a mood as I can remember." There will be more trouble to come. Government officials have been telling reporters that the disputed NSA wiretaps played a part in building the case that led to guilty pleas by two plotters: Iyman Faris, an Ohio truck driver who admitted checking out means of destroying the Brooklyn Bridge, and Mohammed Junaid Babar, a New York City man who acknowledged smuggling money and supplies to an al-Qaeda leader in Pakistan, among other things. Now Faris' attorney and dozens of other lawyers involved in some major terrorism cases are planning to file court challenges to see where the information on their clients came from. Miami attorney Kenneth Swartz represents Adham Amin Hassoun, a Lebanese-born Palestinian who lived in Broward County, Fla., and has been charged, along with Padilla, in an alleged conspiracy to commit terrorist acts abroad. Swartz says if any of the wiretaps used to build a case against his client were done "without legal authority, it would be a real constitutional issue."

There will be a lot of constitutional issues under discussion in weeks to come because the war on terrorism has the potential to embed itself deeply into our legal norms. Conventional wars, against nation-states that can be plainly identified and defeated, have a clear aim in sight. The fight against endlessly shape-shifting terrorist groups is more open-ended. So when we talk about trade-offs between freedom and security, it's a mistake to assume they will be short-term adjustments. The emergency powers that we agree to now may well become the American way for years. We may still agree to them, but it's essential to know exactly what costs they come with.

http://www.time.com/time/magazine/printout/0,8816,1145212,00.html