12/20/2005 07:15 am ET Updated May 25, 2011

King George's Constitution

In early 2002, President Bush secretly authorized the National Security Agency to monitor international telephone calls and international email messages without any showing of probable cause to believe that a participant in the communication was involved in unlawful or terrorist activity and without requiring a search warrant from a court of law. This action was a direct violation of federal law and the United States Constitution.

The Fourth Amendment ordinarily prohibits any search, which includes interception of telephone and email messages, without probable cause and a judicial warrant. (The “ordinarily” refers to some very narrow exceptions, inapplicable here, for unintrusive searches and for situations where officer safety or the need to act instantly justifies a departure from the usual requirements.)

Each of these requirements - probable cause and a judicial warrant - plays a critical role in our constitutional scheme. Expansive government surveillance of a nation's citizens (think 1984 or of the Soviet Union) can undermine privacy, autonomy, independence, spontaneity, openness, dissent, and the general sense of freedom that is essential to a self-governing society. And, of course, surveillance is a powerful tool with which to suppress political opposition. The Framers of the Constitution clearly understood these dangers and therefore sharply limited the circumstances in which the government could intrude on individual privacy.

Moreover, even when the government believes there is probable cause, which is not required by Bush's unlawful scheme, there is the critical question of who decides whether there is probable cause in any given situation. Because executive branch officials are naturally focused on zealous law enforcement, they will inevitably construe “probable cause” too generously. and find it too quickly. For this reason, the Framers required a court order, reflecting an independent judgment by a separate branch of the government, to determine whether probable cause exists. For King George to take this authority entirely into the hands of the executive branch is a flagrant violation of the Fourth Amendment.

Of course, President Bush is not the first president to engage in unlawful and unconstitutional surveillance of American citizens. During World War I, Woodrow Wilson secretly authorized J. Edgar Hoover’s Bureau of Investigation to run hog-wild, creating files on thousands of law-abiding American citizens. When this came to light, Attorney General Harlan Fiske Stone ordered an end to such practices: “A secret police may become a menace to free government and free institutions because it carries with it the possibility of abuses of power which are not always quickly understood.”

Half-a-century later, Lyndon Johnson authorized the National Security Agency -- the very same National Security Agency -- to intercept the international telephone communications of American citizens to determine if they were acting in cahoots with the Communists. Because this program was clearly illegal, NSA devised separate filing systems for these intercepts and fraudulently classified the records “Top Secret.” To avoid public accountability, NSA directed those in charge of the program “to restrict the knowledge that such information is being collected.”

Richard Nixon expanded these programs dramatically, drawing in a host of government agencies, including the Internal Revenue Service, the FBI, Army Intelligence, and the Central Intelligence Agency. The Nixon administration ordered the CIA, for example, to undertake domestic surveillance. Eventually, 300,000 names were indexed in the CIA’s computers. The Agency was fully aware of the illegality of these activities. In passing one report on to the White House, CIA Director Richard Helms noted “this is an area not within the charter of this Agency, so I need not emphasize how extremely sensitive this makes the paper.”

When these unlawful activities finally came to light in 1974, the Los Angeles Times expressed its concern that “the nation was headed toward a police state.” Ultimately, Congress, the courts, and the electorate brought about a public reckoning, culminating in Watergate and the enactment of even stronger safeguards against unconstitutional surveillance by NSA, the CIA, the FBI, and Army Intelligence.

Despite this history, Mr. Bush has the audacity to assert that his authorization of NSA surveillance of American citizens on American soil is “lawful.” It is not. It is a blatant and arrogant violation of American law. If Mr. Bush wanted the authority to undertake such activities, he should have gone to Congress and sought authorization, out in the open. He did not follow this course, both because it would not have been granted and because it would have warned the evil-doers that we were monitoring their communications. Give me a break! Bush apparently believes that the evil-doers assume we act within the bounds of our own Constitution. So, we’ll trick them. We won’t. Now, there's a wise theory of government for you!

As in so many areas, Mr. Bush believes that whatever he thinks is necessary must be lawful, whether it be domestic surveillance by NSA, or torture, or denying the Guantanamo Bay detainees both the protections of the Geneva Convention and the writ of habeas corpus, or disregarding the United Nations Security Council, or his unconscionable detentions of American citizens, like Hamdi and Padilla. Mr. Bush is a man of action, not of thought; a man of faith, not of law. This is a serious and growing problem for our nation.