What Will Obama Do With Bush's Spying Program?

Memo To The President

In this occasional series, NPR will follow the transition from one administration to another through a series of stories, conversations, commentaries and essays that will outline the many issues and challenges facing the new occupant of the White House. From a broken military to a troubled economy to a National Park Service in need of a major overhaul — we'll provide the briefing paper, the options and the obstacles.

Mr. President-elect, you have a lot to think about right now: the economy, the wars, health care. But there are also issues of a more discreet nature to consider.

Simply put, what are you going to do about domestic spying?

It's pretty clear by now that there's been an expansion of government surveillance powers under President Bush. Back in 2005, The New York Times broke the news that the administration was tapping phones without court warrants. This, as you're well aware, prompted a raft of lawsuits, which are still alive in federal court.

One of the strongest cases is that of Wendell Belew, a Washington, D.C., attorney. He has actually seen the top-secret government document describing the surveillance of his calls to a client in the Middle East. The government sent it to him by mistake, then hastily retrieved it; the Bush administration has been fighting to keep the document out of court ever since.

Belew is one of the people who are deeply troubled by the warrantless wiretapping. "If the government can say, 'We're not going to follow the Constitution and the law with respect to wiretaps,' " he says, "then they can decide not to follow the Constitution and the law with respect to every other area."

Of course, the Bush administration says this whole question is behind us. Administration officials say they've brought it back under the oversight of the secret Foreign Intelligence Surveillance Court and they negotiated with Congress to rewrite parts of the federal surveillance law, making it easier for security agencies to tap international calls routed through the U.S.

But there's still a lot about the program the public doesn't know. Even most members of Congress are in the dark. As president, you'll get to pull back the veil. Remember, Mr. Bush has continued to reserve the right, in principle, to conduct surveillance inside the country, in his role as military commander in chief in the war against terrorism.

Orin Kerr, an expert on surveillance issues at George Washington University Law School, says Mr. Bush is leaving you expanded surveillance powers; exactly how expanded is a matter of opinion.

"The law itself has given you a little more power since 9/11," Kerr says. "The Constitution remains the same as it was before 9/11. The real issue is, how aggressively are you going to interpret your power in light of all the new ways surveillance can be conducted."

For example, it's technically feasible for the government to install computers on trunk lines, scanning the flow of e-mails and phone calls for key phrases, Internet addresses or phone numbers. One of the lawsuits still kicking around federal court in California cites testimony from a former AT&T worker who thinks he saw that kind of filtering equipment installed in a secret room at the phone company's hub in San Francisco.

Is this kind of dragnet surveillance legal? That's something you, as president, will have to think about.

Civil libertarians consider it a gross violation of Americans' Fourth Amendment rights, akin to having an FBI agent steam open everybody's letters in search of incriminating phrases. Other legal scholars say it's not that bad. After all, it's just a mindless computer that's peeking inside people's e-mails — untouched by human hands, as the old advertising slogan goes.

This is a constitutional question that the courts have not yet answered. The Bush administration has done its best to keep it that way, saying it can't discuss these secret programs in open court. Civil libertarians hope you, Mr. President-elect, will have a different attitude. They would like to see you dial back government opposition to these lawsuits, so society can get some definition on privacy rights in the computer age.

"Those are the merits that we want to get to in these cases," says Kevin Bankston, the lead attorney for the Electronic Frontier Foundation, a nonprofit group that's suing the telecom companies over alleged spying. "If your questions are about, 'Is it really OK just to have a machine listening?' — those are the questions we need guidance from the courts on. And we certainly don't want this decided in secret by an unchecked executive."

But before you throw it to the courts, Mr. President-elect, you should consider the politics. The fact is, privacy was not a major concern for the public during the campaign season. You found that out in July, when you moderated your opposition to warrantless wiretapping and voted for the changes to the Foreign Intelligence Surveillance Act negotiated with the White House. That bill included retroactive amnesty for phone companies that may have facilitated illegal government spying, a fact that enraged some of your supporters. But in the end, how much damage did it do to your campaign? Exactly.

"I just don't think having a large debate about security versus freedom is something you should have on your 90-day agenda, Mr. President," advises James Carafano, a national security expert at the Heritage Foundation. He says Americans don't need a rerun of the debate over warrantless wiretapping right now.

And there may be more at stake here than law and politics. Remember, there hasn't been another terrorist attack on the U.S. since 2001. Can this be credited to domestic surveillance? You'll soon know more about that than we do, once you get a chance to review the surveillance tools left to you by Mr. Bush.

"Don't throw out the baby with the bath water," says Carafano. "If you made decisions based on the political rhetoric and debate of the last few years, you might end up making us less safe and actually not making us more free."

It's a lot to think about, Mr. President-elect, and right now you have bigger worries. But once you're in the Oval Office, you will have to decide how far to follow Mr. Bush's lead in asserting robust spying powers for the commander in chief.

If it's any consolation, whatever you decide, it'll probably be a state secret.

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