RENEE MONTAGNE, host:
Mr. Obama has a daunting to-do list, as we just heard, but included in that is a question of what to do with the surveillance powers that he is inheriting from President Bush. Mr. Obama's been critical of some of those powers introduced in recent years, though he supported a surveillance bill last summer. In another installment of our Memo to the President series, NPR's Martin Kaste takes on the question of domestic wiretapping.
MARTIN KASTE: Mr. President-elect, when you have a moment to consider the question of wiretapping and privacy, you might want to consider the fact that for some people, this is more than just an abstract debate. There's the case of a Washington lawyer named Wendell Belew. You can reach him by phone, as we did, but you might not be able to count on that conversation being private.
Mr. WENDELL BELEW (Lawyer): I assume that my conversations are subject to surveillance.
KASTE: This might sound a little paranoid, but in the case of Mr. Belew, not so much.
Mr. BELEW: I am one of the few individuals who has clear evidence that I've been subject to what we believe to be illegal surveillance of phone conversations. And I know this because the government sent me a document that I believe describes this surveillance.
KASTE: Belew sued the government, along with dozens of other people, after it came out in 2005 that the Bush administration was doing wiretaps without warrants. As you well know, Mr. President-elect, Congress got involved, arguing with the White House over civil liberties versus national security. It was a hard argument to have, though, given how much of the surveillance program remained shrouded in secrecy. But now as president, you'll get to pull back the veil.
Mr. ORIN KERR (Surveillance Law Expert, George Washington University Law School): What you're going to find out, Mr. President, is what kind of surveillance the government is actually conducting.
KASTE: This is Orin Kerr, he's an expert on surveillance law at the George Washington University Law School. He says the Bush administration is leaving you expanded surveillance powers, but exactly how expanded is a matter of legal opinion.
Mr. KERR: The law itself has given you a little bit more power since 9/11. The real choices are how aggressively are you going to interpret your power in light of all the new ways that surveillance can be conducted?
KASTE: One of those new ways is communications filtering. Experts say it's technically feasible for the government to have computers scanning Internet traffic and phone calls for certain key words or addresses. Some of the people suing the government say this is already happening. Kevin Bankston is the lawyer for the Electronic Frontier Foundation.
Mr. KEVIN BANKSTON (Lawyer, Electronic Frontier Foundation): We have whistleblower evidence from an AT&T technician that it involves, essentially, a surveillance vacuum attached to our domestic network that is sucking up millions of communications and communications records.
KASTE: Now, this may sound bad, Mr. President-elect, but you have to ask yourself, is it really the same as say, having the FBI steaming open everybody's letters? Or is it different when a computer's doing the spying? The courts haven't had a chance to rule on this issue, the Bush administration has made sure of that. But civil libertarians are hoping that you will take a different tact and let the courts weigh in. Here's Kevin Bankston, again.
Mr. BANKSTON: Those are the merits that we want to get to in these cases. You know, if your questions are about, well, is it really OK if it's just a machine listening? You know, those are questions we need guidance from the courts on. And it's certainly not a question that should be answered in secret by an unchecked executive.
KASTE: But before you decide to throw this issue to the courts, you might want to listen to James Carafano, a national security expert at the Heritage Foundation.
Mr. JAMES CARAFANO (Heritage Foundation): I just don't think having a large debate about security versus freedom is something that should be on your 90-day agenda, Mr. President.
KASTE: The fact is, government spying just wasn't a big concern during the last campaign. You, yourself moderated your stance on court oversight when this issue came up in the Senate last summer. And as Carafano says, there's also a chance that these surveillance programs really are keeping us safe.
Mr. CARAFANO: You know, don't throw out the baby with the bath water. I mean, if you've made decisions based upon political rhetoric and the debate in the last few years, you might wind up making us less safe and actually not making us more free.
KASTE: So it's a tough call, Mr. President-elect, but at least you'll have this consolation: Whatever you decide, it will probably remain a state secret. Martin Kaste, NPR News.
MONTAGNE: You're listening to Morning Edition from NPR News.
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