Saturday, December 5, 2009

nsa wiretapping and civil liberty

3.Protections of our national security and of our civil liberties appear at times to be in conflict. Please cite an illustration of this potential conflict and discuss how you would try to resolve or
balance the conflict.

Ideally, in the American government the rights and civil liberties of the individual would be maintained uniformly along with the protection of our national security. However, there are many instances in which it is difficult to uphold both principles without compromise. War is generally the primary cause of this difficulty. Perhaps the most recent controversial clashing of the protection of national security and of Americans’ civil liberties was the debate over the National Security Agency’s wiretapping during the Bush administration.

In December of 2005 it was reported that the “terrorist surveillance program” had authorized the NSA to monitor numerous forms of communication involving a foreign party shortly after September 11, 2001. From then on phone calls, e-mails, Internet activity, text messaging, and any other form of communication that the NSA believed to be outside of the US, regardless if one end of the communication was based in the US, was open to surveillance. The NSA had not acquired a warrant for surveillance.

The debate surrounding the controversy is an interesting one. One principle facet of the argument includes the limit of the authority that the president has. While the Bush Administration defended their actions based on the statement in Article II of the Constitution that states that the president has ‘all necessary authority’ to protect the nation from attack, the Congressional Research Service’s meeting in January of 2006 stated otherwise. The CRS cited the Foreign Intelligence Surveillance Act of 1978 that necessitated warrants before conducting secret surveillance.

Another key point in the debate was the fact that on September 14th of 2001 Congress passed a resolution allowing the president to “use all necessary and appropriate force” against those responsible for the 9/11 attacks. The Bush Administration stated that this justified the surveillance as a measure included in the necessary force. While the CRS agreed that surveillance is part of warfare, they disagreed that using ‘all necessary and appropriate force’ was a blanket statement that included tactics of surveillance. There were also several other examples and precedents derived from FISA and other instances of wartime exceptions.

In the NSA Wiretappings the main source of the debate was that the American people’s civil liberties were being compromised for national security. Both sides of this example have valid basis for their stance, and it is sometimes difficult to interpret the Constitution in terms of 21st century terrorism. However, I feel that allowing the NSA Wiretappings to stand as a precedent for unsanctioned Presidential-authorized government surveillance will eventually lead to the government far overreaching its Constitutionally granted power.

One aspect that makes the war on terrorism different from wars in the past is that there is no definitive end in sight. War is no longer waged in the way that it was in the past, and actors like suicide bombers are not concerned with the American justice system. Thus, it has become increasingly difficult to know how to prevent attacks on the United States. I understand that in the face of such uncertainty and against an enemy so devoid of concern for any kind of war policy that it may seem necessary to do anything possible to try to prevent attacks. However, I feel that the potential (and probable) ongoing threat of these attacks makes it necessary to resist setting a precedent for compromising civil liberty, one of the very beliefs that the US was based on.

Obviously, it is still of utmost importance to continue to prevent attacks on the United States as effectively as possible with the power that the government and President are given. I do not think that the American criminal justice system is a deterrence to terrorists in any way. I think that it is important for the government to be proactive in its search for terrorists, so that that an event like 9/11 doesn’t happen again. However, based on the administration’s admission, the wiretappings provided very little direct information that could be used.

It seems that if the Bush administration hadn’t tried to avoid getting a warrant and had complied openly with the FISA that this scandal wouldn’t have been considered a breach of civil rights. The main problem with the wiretappings was that they were secret, and unwarranted. This seems to send the message that the government can take whatever means they deem necessary in the interest of national security. If the proper steps had been taken before the wiretapping began, it would not have developed into the controversy that it did.

I feel that one way to balance this conflict in this case would have been to change the method that the government focused on to prevent terrorism. One of the most potentially catastrophic terrorist plots of all time, the “Day of Terror” plot, was prevented when information was received from an inside source. I am not an expert on national security methods, but perhaps more tactics like this, that are clearly not in conflict with Americans’ civil liberty, could be focused on.

I understand that methods like surveillance are at times necessary, but I do not think that legislation limiting usage of these methods can be flouted simply because the government deems it necessary. I realize that there are examples in history where this has happened, however through the years the reason that legislation has been crafted to limit these measures is because American people deemed it necessary.

If there is an instance where the American people feel that the threat to national security is so grave that extraordinary methods must be taken, then the proper steps should be taken to amend current legislation in favor of these changes. That being said, I feel that the government should definitely use the power vested in them in order to maintain national security, including wiretapping and similar measures. However, the usage of the measure should be in accordance with existing legislation. In this case, one of the main points of conflict was the fact that the wiretapping had been kept a secret. While the argument may be made that the secrecy of the actions was integral to its effectiveness, there was still no attempt to maintain a warrant to justify the action.

Because the threat of terrorism at present does not seem to have a definitive end, it is important that the precedent of impulsively acting without the correct legal procedure is not set. Once a precedent is set, it becomes increasingly easier to justify behavior based on that precedent. I feel that the NSA Wiretappings would set a precedent of unbridled government power and disregard for due process. Systems like checks and balances and veto power are present so that all facets of the American democratic process can consider ideas and legislation. There are numerous powers that the government has to protect our soil, and these powers are infinitely vital. However, civil liberty is also essential to the United States. The principles that America was founded on cannot be sacrificed in an attempt at national security.

No comments:

Post a Comment