Barrack Obama as a senator running for president thought so and roundly criticized the Bush administration for its use. So did now Attorney General Eric Holder. But that was when it was easy to make such pronouncements without the responsibility of having to actually deal with the situation.
So the other day when a federal judge ruled that one such incidence of spying was "unlawful" the White House and by extension, the Justice Department, suddenly faced a dilemma. Should the administration appeal a ruling that while it immediately dealt with only one instance could easily result in a far broader impact on a policy it now protects on grounds of national security?
The case in question involved the interception of telephone calls of a now defunct Islamic charity in Oregon. Federal Judge Vaughn Walker said that Al Haramain and two lawyers representing it had been "subjected to unlawful surveillance" in violation of a 1978 act requiring court approval for such activity and that the government was liable to pay them damages. The electronic spying was carried out by the National Security Agency.
Despite the administration's vocal opposition to the policy during the campaign, it had been quietly sidestepping the issue by asserting as its predecessor had that the charity's lawsuit against the government should be dismissed to protect state secrets. That's wonderful. The secrets presumably included hundreds if not thousands more domestic intercepts that violated both the spirit and the letter of the Foreign Intelligence Surveillance Act that requires court approval and establishes a panel that can expedite requests for warrants.
Unauthorized spying on domestic subjects began shortly after the September 11, 2001 attack on America. George W. Bush secretly approved bypassing the courts on grounds that there was an urgency that required instantaneous access to potential terrorist plots. Even though the FISA panel was geared to provide swift decisions on such surveillance, defenders of Bush's position contended that too often the opportunity to gain information vital to counterterrorism was missed.
That of course has been the argument all along despite the danger to the constitutional rights of those under surveillance. The greater good demanded it, the argument goes.
What that contention misses is the enormous potential for abuse that such a policy affords. The "big brother" aspects are clear even to those unschooled in constitutional law or the literature of George Orwell. There is enormous temptation to invade the lives of Americans and to collect and store information that has no bearing on the original motivation for the surveillance. Misinterpretation that leads to unwarranted persecution or prosecution becomes an enormous factor. It is the probability of this that prompted Congress to adopt the FISA safeguard.
That is not to say that there is no need to move swiftly and that there is a possibility of missing some information crucial to heading off terrorist activity. But civil libertarians rightfully charge that is the price we pay for a free society.
It is this approach that Obama took during his campaign for the White House, only to find that it is a much more difficult problem than he thought given the enormous secrecy surrounding the entire NSA effort. Having urged the dismissal of the Al Haramain case on the grounds of protecting national secrets, the president's men now will have to decide whether and how aggressively they will appeal Judge Walker's ruling. The judge dismissed the state secrets privilege as a position that would permit government officials to ignore the law despite the fact that Congress specifically adopted it to "rein in and create a judicial check for executive branch abuses of surveillance authority."
Because the judge's decision seems to challenge the expansion of executive power that took place in the last administration and is part and parcel of this one, it will be interesting to see the White House response. Campaign positions often become impractical when the responsibility suddenly is yours.
Dan K. Thomasson is former editor of the Scripps Howard News Service.