Warrantless Wiretapping: Defending James Risen’s Right to Publish

As the author of a New York Times article revealing the existence of President Bush’s warrantless wiretapping program (“Bush Lets US Spy on Callers Without Courts,” 12/16/2005), James Risen has been a controversial figure in the media: some call him a hero, and others believe that he should be locked away in Guantanamo. On November 11th, Mr. Risen came to speak at the University as part of the Brown Daily Herald’s lecture series. The timing for this lecture could not have been better, as President Bush (at the time of this writing) is making every effort to have his lame-duck Republican Congress legalize warrantless wiretapping before the newly elected Democrats take control in January. It is my intention in this article to establish that Mr. Risen’s actions were just and right – an argument, I am afraid, that has far less support than it should from the Conservative Right.

In combating crime of any sort – and especially in attempts to prevent acts of terror from happening in the first place – wiretapping is essential. According to Risen’s article, over 7,000 terrorism suspects are monitored abroad at any given time, as well as 500 or so domestically. These wiretaps have identified a number of very important conspiracies, such as one in 2002 involving a man named Iyman Faris that had the goal of destroying the Brooklyn Bridge. In addition to identifying and stopping this potential disaster, the wiretaps allowed authorities to locate and apprehend many other members of Faris’s cell who had been in contact with him.

But while arguments supporting wiretaps are relatively easy to make, these arguments become far more dubious when the wiretaps are performed domestically and without warrants. The government certainly has a long history of restricting civil liberties, so long as they have had truly compelling reasons to do so: for example, it is illegal to deceptively yell “fire!” in a crowded theater, because to do so endangers the lives and wellbeing of all other theater-goers, and the threat to these individuals far outweighs the minimal restriction on free expression.

It is this point of minimizing the harm to civil liberties that I feel is the strongest argument against warrantless wiretapping. The need for a warrant to secure evidence, of course, exists to ensure that the government stays within reasonable bounds in its efforts to police: for example, the government may not search every house on a block simply because it knows that a suspect is in the general area. In keeping with the fundamental tenants of democracy, the government must establish to the courts a reason to violate the freedoms of individual citizens each time this is done.

The Bush Administration claims that removing the need for the NSA to secure a warrant before wiretapping is essential for fighting the war on terror. But where is the compelling need to violate civil liberties in this fashion? There are two main arguments. First, many believe, there is a need for expedience: the government must be able to track suspected terrorists as soon as it becomes aware of them. The simple remedy for this, however, is to allow warrants to be secured within a set time after the wiretap is established (say, seventy-two hours), by which time either the warrant must be secured, or the wiretap must be removed and the recordings destroyed. A second argument is that the need to secure a warrant makes wiretapping impossible against terror suspects when the government does not have evidence. Again, however, the burden of probable cause is not particularly high, and has been carefully delineated by the Supreme Court to provide the appropriate balance between the needs of the police and the civil liberties of American citizens. There is absolutely no reason that the government should not be able to meet this simple but important burden in securing warrants for its wiretapping programs. Even if one accepts the President’s legal arguments that he has the power to take any necessary measures to protect the country in a time of war, the lack of a compelling reason to warrantlessly wiretap, compounded by the severe encroachment upon civil liberties thus incurred, demonstrates unequivocally that such behavior is not at all proper.