A False Choice
The American people expect the government to safeguard our nation from threats posed by terrorism. To date, Congress, the courts and the American people have given the president great leeway in fighting terrorism. But, as the U.S. Supreme Court has noted, the fight against terror does not give the president a blank check.
The president has a sacred obligation under the Constitution to protect both the nation’s safety and its constitutionally-guaranteed freedoms–and to honor the doctrine of separation of powers. His failure to do so would compromise the very principles and ideals that we are fighting to protect.
Disclosures about secret wiretapping–authorized by the president and conducted by the National Security Agency– that shocked Americans led me to appoint the Task Force on Domestic Surveillance in the Fight Against Terrorism. This bipartisan group includes a former FBI director, former general counsel to the CIA and the NSA, and former ABA section chairs.
The task force unanimously agreed on six recommendations designed to ensure that the rule of law does not become a casualty in the fight against terrorism. The ABA House of Delegates overwhelmingly adopted those recommendations at the 2006 midyear meeting in Chicago. (The full report with recommendations is available at www.abanet.org/op/domsurv.)
This new policy states the ABA’s unequivocal opposition to any electronic surveillance inside the U.S. for foreign intelligence purposes that does not comply with the Foreign Intelligence Surveillance Act. The policy also urges the president to seek amendments or new legislation if he believes that FISA, which Congress has amended four times since Sept. 11, 2001, is inadequate to protect national security.
The ABA has not taken a position on whether the president’s unprecedented domestic surveillance program violates FISA, the Fourth Amendment, or any other laws or constitutional provisions. Such determinations cannot be made until more is known about the extent of the program. The policy therefore urges Congress to conduct a thorough public investigation of electronic surveillance conducted inside the U.S., with safeguards to prevent disclosure of classified information. Congress and the American people have the right to know whether any legal authority supports the president’s troubling surveillance program, who has been spied on, and what use has been made of the data gathered.
The Law is King
I am heartened by the fact that the ABA policy reflects the views of most Americans. In a national survey conducted for the ABA by Harris Interactive in February, 77 percent of respondents expressed deep concern with the surveillance program: 52 percent of respondents stated that the president, on his own, should not be able to suspend constitutional freedoms, while an additional 25 percent said the president should obtain approval from Congress or the courts before doing so. Only 18 percent believe that the president alone can suspend those freedoms whenever he thinks it is necessary to protect national security.
The survey results reaffirm the principle articulated by patriot Thomas Paine in his pamphlet Common Sense. He wrote that while in England the king was the law, in America the law is king. The survey results also reaffirm, 230 years after the Revolution, Americans’ continuing abhorrence and outrage with warrantless searches, which was the match that ignited the American Revolution.
The awesome power of government to penetrate citizens’ most private communications must not be held solely in the hands of the executive branch. There must be oversight by Congress and the courts. That is the very essence of the doctrine of separation of powers, which has enabled our repub- lic to survive for more than two centuries. No one questions the president’s motives, but governments are made of fallible humans. As the great jurist Louis Brandeis warned, “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent.”
America faces difficult choices in the age of terrorism. But as guardians of the Bill of Rights, lawyers must reject the false choice being offered to Americans–that we must sacrifice freedom to have security. We must insist our government protect both, as it has throughout our history.
The American people will demand it.
