A group of civil rights activists and legal scholars marked the President's Day holiday, Monday with a discussion of constitutional limits on U.S. presidential authority. The panel focused on the controversy surrounding the Bush administration's program to secretly wiretap domestic telephone conversations with suspected terrorists overseas.
President Bush has weathered fierce criticism for the eavesdropping program, which has bypassed the judicial warrants that Congress mandated for domestic surveillance in 1978.
Earlier this month, Mr. Bush said it is vital that the U.S. government be able to listen in on terrorists who have contacts within the United States.
"It is a different kind of war with a different kind of enemy," said George W. Bush. "If they [terrorists] are making phone calls into the United States, we need to know why."
But free-speech advocates say the question is not whether the Bush administration should protect Americans, but rather how it goes about doing it. Speaking at a forum hosted by George Washington University, the director of the American Civil Liberties Union, Anthony Romero, said, if left unchecked, government spying on ordinary Americans will have a chilling effect on the nation's discourse.
"The harm is there," said Anthony Romero. "If the cost [of wiretapping] is shutting down free speech. If the cost is shutting down the discourse of ideas, of having Americans afraid of talking on the phone and doing certain computer searches, then yes, I do think the cost is too high."
The panel was asked why any law abiding non-terrorist should fear the government eavesdropping on their conversations when, presumably, they have nothing to hide. Information policy expert Jim Harper of the Washington-based Cato Institute had this reply:
"We protect privacy for any reason or no reason," said Jim Harper. "We premise privacy and individual rights, not on their functional utility, necessarily, but on the fact that individuals want to keep them."
The Bush administration maintains the president's constitutional mandate to protect the nation from foreign enemies covers domestic wiretapping, and that Congress further strengthened this authority when it authorized war following the September 11, 2001 terrorist attacks on the United States.
Earlier this month, Attorney General Alberto Gonzalez defended the program in testimony before the Senate Judiciary Committee.
"The terrorist surveillance program is necessary, it is lawful, and it respects the civil liberties that we all cherish," said Alberto Gonzalez.
But several members of Congress have complained that the Bush administration is being secretive about the details of the program. Administration officials say they have no intention of speaking publicly about operational aspects of surveillance so that terrorists are not tipped off about U.S. methods of collecting information.
Harvard University constitutional law professor Lawrence Tribe dismisses the administration's defense.
"We all recognize that there are certain cases where certain details should not be revealed," said Lawrence Tribe. "But we are not children. We are not so stupid as to think that Osama bin Laden is shocked, shocked to learn that we are trying to overhear what he is saying. The secrets that this [the Bush] administration thinks must be kept are ridiculous."
Some civil libertarians and congressional Democrats have accused President Bush of using the terrorist threat as a pretext to seize sweeping executive powers that America's constitutional framers never intended. But Cato Institute analyst Jim Harper prefers to give Mr. Bush the benefit of the doubt.
"I do not believe that people in the Bush administration are cynically manipulating the levers of power in maintaining a facade of fear strictly because it is to their political advantage," he said.
A former director of the National Security Agency, which runs the controversial wiretapping operation, has said that the purpose of the program is to prevent attacks on U.S. soil, not to collect mountains of information on ordinary American citizens.