The New York Times first reported on the executive order passed by President George W. Bush authorizing the National Security Agency to conduct warrantless phone-taps of people believed to be linked to al-Qaeda in December of 2002. Since then, the controversy has escalated into a full-blown political firestorm on issues concerning legality, national security, separation of powers and civil liberties granted by the Constitution.

While Monday marked the first day of the Senate Judiciary Committee’s investigation of the spying program, the College of Law hosted its own exploration of the issue in a more subdued panel discussion titled ‘By All Means Necessary: Presidential Power, Warrentless Surveillance and Terrorism.’ The five-person panel, made up of Alasdair Roberts, David Crane, Bill Wlecek, Bill Banks and David Driesen, took turns laying out the issues, presenting evidence and taking sides on both ends of the political spectrum last night in Grant Auditorium.

Roberts, the director of the Campbell Public Affairs Institute and an associate professor in the Maxwell School of Citizenship and Public Affairs, kicked off the event by noting that the NSA has engaged in warrentless surveillance every day since electronic monitoring equipment was invented in the interest of national security, and that there is no remedy for such intrusions.

‘The NSA has turned the antennas around,’ said Roberts, ‘and the world is learning that the U.S. is more accountable for hypothetical threats than real ones.’

Crane, former chief prosecutor of the Special Court for Sierra Leone and a visiting professor of law, addressed the presidential prerogatives regarding intelligence activities in a more legalistic framework, asserting that ‘the current laws related to intelligence activities are not a hindrance to their operational execution.’

Things like the Foreign Intelligence Surveillance Act, passed in 1978, are proof of both the legality and functionality of wiretapping, as well as ‘assuring that the civil liberties of U.S. citizens are protected,’ Crane said.

Crane wondered why the president would adopt the controversial NSA program when he already had the ability to accomplish his security objectives within the context of the law.

The answer, said Wiecek, a Congdon professor of law and professor of history in The College of Arts and Sciences, is, as Attorney General Alberto Gonzalez said, ‘speed, agility, and secrecy.’

‘FISA wiretaps involve lawyers and paperwork, and lawyers and paperwork take time – sometimes more time than is desirable,’ Wiecek said.

Acting as the official representative of the Bush administration, Wiecek outlined the points that the president and attorney general claim validate the NSA program. According to Wiecek, Bush’s actions are consistent with FISA and the Fourth Amendment and are justified by the ‘inherent authority of the chief executive, which confirmed by Authorization for Use of Military Force resolution of 2002.’

The AUMF, which authorizes the president to ‘use all necessary and appropriate force against those nations, organizations or persons he determines planned authorized, committed, or aided the terrorists attacks’ was passed in a joint session of Congress in the days following Sept. 11, 2001, and is the basket in which the Bush administration has placed all its eggs with respect to the legality of the NSA surveillance campaign.

Banks, director of the Institute for National Security and Counterterrorism at SU and a Meredith professor of law, however, called the AUMF an ‘ambiguous statute’ and argued that Congress has the authority to regulate the conduct of such surveillance by legislating a procedure.’

Driesen, an Angela S. Cooney Professor of Law agreed, concluding that ‘wiretapping isn’t a use of force,’ and ‘if you don’t following FISA, it’s not legal.’

Legal or not, Bush’s executive order for the NSA to conduct warrentless wiretapping in and out of the United States will undergo serious scrutiny in a series of congressional hearings in the coming weeks. Meanwhile, Middle America is asking two questions: Is the program necessary? And is it lawful?

According to the Bush administration, the answer is yes, but as to others, the answer isn’t as clear.

‘The balance of civil liberties and national security has always been a precarious one,’ Crane said. ‘A balance that has been tested since the founding of our republic.’

Published on February 6, 2006 at 12:00 pm