Column: The Public Eye: Domestic Eavesdropping: Why Do We Care?, By: Bob Burnett

Friday February 10, 2006

In December, the New York Times revealed that the Bush administration has been eavesdropping on our phone calls, by means of National Security Agency computer systems, without a court order. Although the exact nature of the surveillance is highly classified, it appears that the White House has gone on a massive “fishing trip”—one that invades the privacy of thousands of ordinary Americans. This article considers the pragmatics of Administration eavesdropping—why we should care about it. 

Bear in mind that the scope of this fishing expedition is enormous. Because the National Security Agency surveillance is highly automated, there are hundreds of thousands of Americans being monitored—an average of 500 additional each day since 9/11. In comparison, in 2004 the Federal Intelligence Surveillance ACT court granted 1758 warrants all year. 

Note that there is a specific law, FISA, to deal with domestic surveillance. The Bush administration has ignored this. Most legal experts feel that their action is illegal. 

Americans are a pragmatic people. For many, the ultimate criterion will not be “is it legal?” but simply, “does it work?” Has the Bush eavesdropping protected us? If it has, why should we care about how the White House goes about spying on terrorist suspects? Because of this pragmatic line of reasoning, Americans are divided on the subject of eavesdropping. 

The latest Gallup Poll, conducted Jan. 20-22, finds half of Americans (51 percent) believe the Bush administration was wrong in wiretapping terrorist-linked telephone conversations without first obtaining a court order, while 46 percent say it was right. However, these poll results are fragile, highly dependent upon the exact wording of the question. The results shift if respondents are asked if its OK to eavesdrop on “average Americans” versus “suspected terrorists.”  

The average American may reason, “So what? If I have done nothing wrong, then I have nothing to be afraid of.” 

Unfortunately, there is a lot to be afraid of. American history teaches us that there are three distinct reasons why we should be wary of illegal Federal actions such as warrantless domestic eavesdropping. The first is that they inevitably become political. The second reason is that we have learned from bitter experience that if the administration gets away with this, they will try something even worse. The final reason is that unauthorized surveillance is not a sign of strength, but rather of incompetence. 

The history of illegal eavesdropping in the United States indicates that it is abusive and something to fear. There is not a brick wall between well-reasoned security operations and sleazy political back stabbing. The history of surveillance operations such as COINTELPRO indicates that for every baddie the feds tracked, the Ku Klux Klan, they monitored a goodie, Martin Luther King, Jr. Opponents of the regime in power got monitored and, in many cases, harassed. 

Do we really trust the Bush administration to exercise good judgment in eavesdropping on our digital correspondence? Be serious. This is the same administration that has spied on Quaker meetings and sent IRS agents to hassle ministers who preached against the war. This is the same administration that routinely lies about key matters of national policy such as the presence of WMDs in Iraq. If they eavesdrop on our communications, they will inevitably use this information for political purposes. They imperil the foundations of freedom. 

The second reason we should protest this is because of the expansion of presidential power. This may seem like a theoretical concern, but it’s not. The founders had the wisdom to provide for separation of powers in the constitution. In the matter of domestic surveillance, Congress indisputably has the authority to set the rules, and has done so—the Federal Intelligence Surveillance Act. This law clearly describes the process that must be followed when eavesdropping on Americans; the courts protect our Fourth Amendment rights, which ensures that there is “probable cause” for the surveillance. The president has simply blown off Congress and the federal courts. 

This is not the only instance where President Bush has sought to expand presidential powers considerably beyond those envisioned by the framers of the Constitution. He took us to war by misleading Congress, and the American people, about the danger posed by Iraq. The administration’s hunger for power is insatiable. This threatens our democracy. 

Finally, there is no evidence that the NSA program of warrantless surveillance has “helped prevent terrorist attacks,” as the president claimed in his State of the Union address. The only example Bush cites was the arrest of a crazy who planned to bring down the Brooklyn Bridge by a blowtorch attack. There is abundant evidence that the NSA program is yet another example of administration incompetence. Many observers have suggested that the funds spent on the NSA system would be better spent recruiting more agents and training them in Urdu and the other languages spoken by Al Qaeda operators. 

When we look at the history of the Bush administration, there is no large project they’ve done well—except get reelected. They screwed up the occupation and reconstruction of Iraq. They failed to respond to Hurricane Katrina. George Bush and his cronies have not led, they have bungled. 

Americans are right to be concerned about the threat of terrorism. But the answer is not a vast, clandestine surveillance operation that threatens the privacy of every American. The answer lies in competence, in a well-thought-out program of homeland security. 

Sadly, competence is not something that we can expect from this administration, which continues to be more interested in increasing its own power than it is in protecting America. 


Bob Burnett is a Berkeley writer and activist. He can be reached at