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The spy plan's spoiler

January 04, 2006

JAMES B. COMEY CAN HARDLY be considered soft on terrorism. As deputy attorney general, he has been one of the Bush administration's chief prosecutors of the war on terror, pursuing accused bombers and terrorists from Riyadh to Chicago. So his refusal to approve the administration's warrantless wiretaps of Americans cannot simply be dismissed as the rantings of an Al Qaeda apologist.

But Comey's objections, made in 2004 and first reported Sunday in the New York Times, do more than rob the president and his defenders of one of their favorite arguments. The article was based on the accounts of unnamed administration officials, and Comey isn't giving the reasons for his opposition to the National Security Agency's domestic surveillance program. But they're easy to guess.

First, the program is unnecessary. There is already a special court to approve wiretaps of suspected terrorists, and it is notoriously obliging; in 2004, it received 1,758 requests for warrants and denied none of them. It often issues such warrants within hours and can approve them after the fact. (Details about the court's activities are secret.) And the Patriot Act, almost all of which has been renewed, gives law enforcement extraordinary powers to fight terrorists.

Second, the program is probably illegal. The Foreign Intelligence Surveillance Act, which created that special court, specifically allows warrantless surveillance in the case of war, but for only 15 days after that war has been declared. If it had to conduct such surveillance for longer than that -- Congress authorized the use of force, which is tantamount to a declaration of war, one week after 9/11 -- the executive branch would need to change the law.

The administration has a novel response to this argument: We're at war, and we don't have time to obey the law. Or, as an assistant attorney general put it in a letter to Congress last month: We were worried that the special court that grants secret warrants would not do so with sufficient "speed and agility," and "any legislative change" to amend the system "would have tipped off our enemies." So the administration went ahead with its spying program anyway.

Last, and most important, the NSA's surveillance program is an affront to the American system of checks and balances -- and Americans' right to privacy as guaranteed by the 4th Amendment. The president fails to grasp this point. Asked Sunday what he'd say to Americans worried about violations of their privacy, Bush responded with a breathtaking non sequitur. "If somebody from Al Qaeda is calling you," he said, "we'd like to know why."

So, no doubt, would James Comey. But at least he understands that, even in a time of war, the government is not free to simply tap your phone to find out who's calling you and why.

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