Constitutional collision over surveillance program

WASHINGTON — If national security and survival depend on it, it is hard to understand who would want to deny President Bush the authority to order wiretapping of cell phones or e-mails of al-Qaida suspects with or without a court warrant, open or secret.

Limited ways can be found in a free society to do what needs to be done. They have before.

The issue, however, now has become the subject of a major constitutional collision. Several Democrats claim Bush broke the law. The president has launched a counteroffensive, claiming sweeping authority to conduct domestic surveillance as part of the war on terrorism.

After the Sept. 11 attacks, Bush authorized the National Security Agency to conduct wiretaps without approval of a court that had been set up at the Justice Department expressly for the purpose of secretive surveillance cases. Called the Foreign Intelligence Surveillance Court, it was established under a 1978 act of Congress following the Watergate scandal and the associated exposure of unauthorized wiretaps by the Nixon administration.

Bush said the FISA procedure is too cumbersome to catch the nimble terrorists of the post 9/11 era. Attorney General Alberto Gonzales said professional intelligence officers must have the discretion to make decisions about particular intercepts without waiting hours or days for all the paperwork to clear and a judge to decide. Evidence and suspects disappear and the trail often goes cold.

The Bush administration has begun calling the secret intercepts the "Terrorist Surveillance Project." Michael Hayden, deputy director of National Intelligence, contended that the new program affects only international calls and "only those we have a reasonable basis to believe involve al-Qaida or one of its affiliates."

Some Democrats and a few Republicans, however, have expressed concern because the program was shrouded in secrecy. Wiretaps were ordered without even informing the surveillance courts.

The sweeping claims of authority Bush has made for invoking the surveillance project are provoking as much outrage among civil libertarians as the project itself.

Because of his role as commander in chief of the armed forces and his duty to "protect and defend" the American people, Bush claims an expansive wartime role that seems to grow with each speech he and his officials make.

The furor they have engendered has spilled over into the confirmation debate for Samuel Alito as the ninth justice of the Supreme Court.