Civil liberties headed for war casualty list

It's ironic that on the day when Christians were heralding the arrival of the Light of the World and Jews were beginning their eight-day Festival of Light known as Hanukkah, our nation was revisiting a very dark chapter of history.
The same document that guarantees every American the right to mark Dec. 25 as a Christian holiday, or a Jewish holiday, or a cultural holiday such as Kwanzaa or just a day off from work is the same document that the executive branch of the federal government thinks it can ignore in the name of national security.
The enumeration of citizens' rights known as the Bill of Rights -- everything from free speech to the right to be secure in one's home -- isn't just a listing of suggestions that can be ignored when they become inconvenient.
The Fourth Amendment is a crucial part of the ordered liberty that distinguishes our system of government: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Balancing act
Individual freedoms are balanced with effective and efficient government. It is the gold standard of democracy, the model that the United States is attempting to export to the rest of the world. But after hearing of an executive order that asserts a war power to allow domestic surveillance without judicial review, one hopes that the Iraqis and the Afghans appreciate the nuance of the phrase: "Do as we say, not as we do."
Our nation has used warrantless electronic surveillance against U.S. citizens before -- and it wasn't pretty.
Have we forgotten the findings of the Church Committee? Governmental abuses of the 1970s are how we ended up with the Foreign Intelligence Surveillance Act that established a secret court to review surveillance requests by intelligence agencies.
The Bush administration has the tool it needs to conduct exactly the kind of spying it believes is crucial to national security. The requirements to secure a warrant from the Foreign Intelligence Surveillance court aren't onerous. FISA even has an emergency procedure that allows the National Security Agency to authorize a search and then go to the court up to 72 hours later to seek confirmation of that authority.
President Bush's advisers appeared to know that the commander in chief was tiptoeing close to a constitutional mine field when he issued the executive order that authorized electronic surveillance on telephone calls and e-mails that could include a U.S. citizen as one of the parties. At least they sounded that way in the transcript from the Dec. 19 news conference with Attorney General Alberto Gonzales and former NSA director Lt. Gen. Michael Hayden.
Amendment considered
"We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible," Gonzales said in response to a question of whether the administration would "do the country a better service" if it fixed what it thinks is the problem of FISA's lack of "agility."
Why even ask about amending FISA if the executive branch believed it had the authority it needed?
It's hard to argue against the need for U.S. security personnel to be able to engage in "signal intelligence" -- intercepting communications that may prove valuable in detecting and preventing an attack. Engaging in such intercepts is nothing new in time of war. Surveillance technology is a byproduct of every conflict.
Comfort is supposed to be found in Gonzales' repeated assurance that "the authorization by the president is only to engage in surveillance of communications where one party is outside the United States, and where we have a reasonable basis to conclude that one of the parties of the communication is either a member of Al-Qaida or affiliated with Al-Qaida."
But I am not comforted -- not when a U.S. citizen could be on the other end of that call. Not when one of the distinguishing features of this nation's operating document is that the executive branch of government doesn't spy on U.S. citizens unless the independent judicial branch has issued a warrant.
The Republicans who stood on the Senate floor last week and defended Bush's gross overuse of executive power should be keenly aware that they are defending a precedent they may come to regret. It's all accolades for the commander in chief who is saving his people from evil when the president is Republican. Would we hear the same kind of kudos if the president were from the other party?
X Jill "J.R." Labbe is deputy editorial page editor of the Fort Worth Star-Telegram. Distributed by Knight Ridder/Tribune.