Dr. Louis Day, recipient of a doctorate degree in Mass Communication from Ohio University, has been teaching media law for 25 years and ethics for two decades. He is the author of one of the top-three ranking media ethics texts used at the university level, he has worked as a television and radio news reporter, writer, editor and spent two years in public information with the U.S. military.

In December 2005 the Bush administration publicly confirmed a report by The New York Times revealing that the NSA has been wiretapping Americans’ overseas phone calls to or from people the government determines might be connected to terrorism. The program, referred to by the Bush administration as the “Terrorist Surveillance Program,” involves surveillance without informing the secret United States Foreign Intelligence Surveillance Court (FISC). A federal judge recently ruled that this is a violation of the Foreign Intelligence Surveillance Act, as well as the First and Fourth Amendments.
Here, Day shares his opinions on the recent National Security Administration (NSA) wiretapping controversy.

What should someone who has never heard anything about this controversy know?

I think it is important to understand that the government does have the authority to wiretap with the proper permission from the courts, with a proper warrant. That’s been true for many years. What the public needs to know is that there is a secret federal court (FISC) that has been around for a number of years to provide authorization to the government for surreptitious surveillance and wiretapping. It operates in cooperation with the NSA.
The public should understand that that court operates without really any public scrutiny because it operates behind closed doors. Most courts operate in the public, this court does not. I think most Americans assume that every wiretap conducted by the government is pursuant to a legitimate warrant, but under the current legislation that may not be the case. There are cases challenging this legislation, like the Patriot Act. The problem is we don’t have a definitive decision from the U.S. Supreme Court. One lower court has already found that the Bush administration has acted unconstitutionally, but again, it’s a lower court.

What is the major point of debate, from both sides?

The government’s position is that they must have extraordinary powers to fight the war on terrorism and that they don’t always have time to get a warrant. They need to be able to conduct a lot of their surveillance in secret and outside the usual system of judicial oversight. They also claim that they are not going to use these powers on ordinary citizens, only people who pose a threat to national security.
The position of the civil libertarians is that these extraordinary powers are outside the scope of the constitution, which says that the government has to prove a legitimate need using the standard of probable cause. In other words the government has to prove evidence of a crime or that some injurious act is about to occur before eavesdropping. Civil libertarians say that the constitution is being circumvented by warrantless wiretapping, and that regardless of what the government’s needs, we still have a constitution that is supposed to be obeyed both in times of urgency and tranquility.

What kind of historical precedence is there for this case?

There is a great deal of historical precedence. In the Civil War, Lincoln suspended the right of habeas corpus, and it’s happened in almost every war in one respect or another. In World War II we incarcerated Japanese Americans. We put them in concentration camps because we thought they were a threat to national security. And even though that [decision] was upheld by the Supreme Court, in retrospect we have to conclude that clearly it was a violation of constitutional rights to throw American citizens into prison. So there is precedence, but the question is whether the abuses of those individual rights are ever justified.

Do you think the Bush administration is overstepping the boundaries of precedence?

I do think that [for warrant-less wiretapping] they have overstepped those boundaries. The U.S. Supreme Court may eventually disagree with me but I think they have acted outside the Constitution in doing this.

How is President Bush defending his position?

He’s defending it on the grounds that, as Commander and Chief and Chief Executive Officer, he has a responsibility to provide homeland security to the American people. That authority gives him use of extraordinary powers in gathering information on activities that pose a threat to national security.

The New York Times originally released information on the NSA program. What do you feel is the role of the U.S. media in reporting secret programs whose legality could be in question?

I think it’s the press’ duty to report the activities of the government, and if in fact the government has embarked on a program that could go beyond what it was originally intended to do and impact on the lives of everyday Americans, then I think we have a problem. I think that’s the real fear: that it starts out as a very narrowly focused program and expands over time. But we know that during the Vietnam War the FBI collected information on thousands of innocent people. The only crime that they committed, if you can call it that, was being opposed to the war. And even today there are documents in the FBI’s files on students who protested the Vietnam War on college campuses. That’s the concern here: not just that the government is involved in surreptitious surveillance, which is a problem in itself, but that eventually it will be expanded beyond terrorists, and to ordinary American citizens who just happen to be dissenters.

A number of bills have been proposed to deal with the controversy. So far the only one with bi-partisan support is the Specter-Feinstein bill. Do you think it provides a good solution?

They [Congress] are not too far away from a vote on this one. It authorizes the secret court to rule on the legality of the NSA wiretapping program. This is trying to move one step away from the so-called warrant-less wiretap by getting judicial approval. Well, that’s an improvement I suppose, but it would still be done by the secret court, which operates behind closed doors. At least there would be some judicial oversight, but I am opposed to secret courts to begin with.

Why?

For the same reason that I oppose secrecy in government. I understand that the government must keep some information classified, and I don’t object to that, but courts are supposed to operate in the public even though they go into closed sessions for very narrowly defined circumstances. The problem is that when we have secret courts approving these things, there’s no accountability. We never know how far they’re going, and that’s the beginning of, quite frankly, a police state. Nazi Germany had secret courts, Communist Russia had secret courts, so I have concern with any court that operates behind closed doors.

What do you think are the most important things the mainstream media and the public, at large, misunderstand or omit about this issue?

I think most people probably misunderstand the constitutional issues. They don’t understand that we have a Fourth Amendment that protects against unreasonable searches and seizures, and that is why government agents generally have to get warrants. They’re not supposed to be able to get one unless they can convince a judge that they have probable cause. A judge should ask the police or the FBI, “Why do you need this wiretap? Exactly what do you have to convince me that if you do wiretap you will get information that will maybe lead to a conviction or at least an indictment?”

Do you have any final thoughts?

One of the values that we [as Americans] have always held dearly is the rule of law and civil liberties. Those values have always held true. I realize that there are times when we have to make some concessions, but if we relinquish our civil liberties then isn’t the war on terrorism really over? They’ve won. They’ve forced us to abandon some of our fundamental values. That’s what their objection is to our entire way of life. If they succeed in having us give up our civil liberties, then as far as I’m concerned they’ve basically won the war on terrorism. They’ve forced us to do what we said we would never do.
I grew up in the South, in a system of legal racial apartheid. I’ve seen what happens when people are deprived of their civil liberties. I came out of that and eventually realized that it was morally and legally wrong. Civil liberties are one of the things I cherish most and when you go back over American history, every time we had a crisis there was an attempt to violate those liberties. And yet, we still haven’t learned our lesson. Every time there’s a crisis we start trying to figure out how far we can go infringing other people’s rights. I’m perfectly willing to concede that there are certain very limited areas where the government has a right to keep information secret. I would never approve of the government being forced to release war plans that would put our troops in danger. But this kind of information is very narrowly tailored and a rare exception.
So, anyway, I hate to use the dirty word, but I’m a liberal on that. I’m not a liberal on every issue, but certainly on the issue of civil liberties because I think that’s what makes us different.

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