Bob Barr

Listen up; Our Rights Are at Risk
The Atlanta Journal-Constitution

May 14, 2006

Electronic surveillance. Domestic spying. Data mining. Eavesdropping. Pen registers. Trap and trace devices.

These and other terms, probably quite familiar to former federal prosecutors and tired, old CIA-types like me (I spent about eight years with the CIA back in the 1970s), were not, until recent weeks, among the everyday vocabulary of ordinary Americans. They may still not be.

Yet, an increasing number of Americans are concerned about a super-secret government agency capable of monitoring, storing and listening to virtually any Internet or phone conversation in the country.

Why? Because the power to take away one's privacy necessarily carries with it the power to demean, control and even jail a person. Moreover, if the government does these things without first securing court orders, it is violating not only the laws of the United States but the Fourth Amendment to the Constitution, which guarantees us the freedom not to have the government listen in to our conversations without probable cause to believe we've done something wrong. Federal law also requires that the government secure an order before it can properly go to a telecommunications company and demand to know the numbers we've called on our phones or the numbers of persons who've called us (trap-and-trace and pen-register devices), or which Internet addresses we've sent to or received communications from.

If that seems to be a mouthful, it is. A lot is at stake here.

The latest chapter in the growing controversy regarding the National Security Agency does not involve — as the president would have us believe — a mere few instances in which the agency sought to gather data on phone numbers and calling patterns of persons suspected of engaging in terrorist activities or having links to known or suspected terrorists. It now appears that the agency has been gathering the phone numbers called and the Internet addresses visited by millions of Americans, virtually none of whom have even the remotest connection with any terrorist or terrorist organization. This revelation comes on top of the information revealed in December that the president had — regularly since 911 — ordered the NSA to listen in on phone conversations of an unknown number of American citizens' actual phone conversations.

The man in charge of the agency doing all this is four-star Air Force Gen. Mike Hayden. Until recently, Hayden ran the NSA. He is now the No. 2 man at the Directorate of National Intelligence (the new super-bureaucracy supposed to run all foreign intelligence activities by the government), and he is President Bush's choice to head the CIA. Hayden is now well-known to millions of Americans. And there is sound reason to oppose his nomination to head the CIA.

Wrong man for the job

Why should Hayden — an extremely competent and professional career military man and an unquestioned expert in intelligence matters — not serve as head of the weakened-but-still-important CIA? Not necessarily because he is a military man at a time when the Defense Department is poised to seize control for the first time since the end of World War II of virtually all facets of the vast, U.S. foreign intelligence apparatus.

Hayden is not the right man for this job because he appears to change his view of what is lawful depending on who is asking him and when he is being asked.

In April 2000, on a day when both yours truly and Hayden (then head of the NSA) testified before the House Intelligence Committee on the NSA engaging in domestic intelligence gathering, the general was asked explicitly whether and under what circumstances the NSA could electronically surveil Americans in this country. The general said very clearly, explicitly and correctly that if the NSA had reason to surveil an American citizen while in this country, the only way it could do so would be to first secure a court order. Period. End of argument. You must get a court order first.

Well, here we are six years later; Hayden has an extra star on his shoulder; he is working for a new president; and the law that applied in 2000 is — on this point — exactly the same. Yet Hayden's answer to that very same question is as different as night and day: What this president is doing by surveilling Americans in this country without court orders is perfectly fine.

Congress must wake up

Of course, the president — who keeps mouthing the same empty phrases that "we always protect the privacy of American citizens" and "we always follow the Constitution" — also finds what he is doing perfectly fine. The telecommunications companies with their hands caught in the electronic cookie jar are suddenly silent, but obviously think it is perfectly fine to share millions of their customers' phone and Internet records with the NSA based on nothing more than a demand from the agency that they do so.

Members of Congress, who have been largely somnambulant up to this point, finally may be waking from their slumber. Let's hope so. If they don't, then we will wake up one day in the very near future and find that George Orwell — who warned of the development of a surveillance state in his book "1984" nearly six decades ago — was in fact an optimist.

Mr. Barr occupies the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union Foundation.