Justifying America's 'big ear'

I had to smile when President Bush was shown on television visiting the National Security Agency at Ft. Meade, Md., and telling the eavesdroppers that we're doing a good job on the antiterrorism front.

The existence of the multibillion dollar agency was kept quiet until its domestic surveillance programs were revealed in a Senate investigation in 1975. And when I tried to do an on-camera report for CBS standing outside the NSA gate, a US marine warned me I would be shot if I didn't go away. I didn't stay to test my First Amendment rights.

Testifying before a Senate committee in 1975, the NSA's director, General Lew Allen, acknowledged that at the request of other agencies, the NSA maintained watch lists with hundreds of names, many of them Americans whose phone calls were being monitored in an effort to establish foreign connections to antiwar dissidents. There were also suspected drug traffickers and potential assassins on these lists.

Out of that Senate investigation came the conclusion that there was good reason for some of the intercepts, but that there had to be some kind of judicial control to prevent breaches of civil liberties. And from that conclusion was born the 1978 act called FISA - the Foreign Intelligence Surveillance Act. FISA established a secret court in charge of issuing warrants for wiretaps when requested. The court has refused very few applications and the law allows, when necessary, for surveillance to begin before the warrant has been issued.

There is a saying that if something ain't broke, don't fix it, but the Bush administration, for reasons hard to understand, has taken the position that it can ignore FISA, relying on a president's inherent power to order surveillance all on his own.

And so 30 years after the Senate revealed the existence of the NSA, America's big ear, the issue is back before the Senate again. Chairman Arlen Specter has announced judiciary committee hearings starting Feb. 6. And with President Bush now, as with President Nixon then, the issue is whether the president is a law unto himself.

The senators must first of all define what they are talking about when they discuss interception of communications. Wordsmith William Safire, in an illuminating New York Times Magazine article spells out the various expressions from interception to bugging.

To hear Mr. Bush you would think this is all a matter of tapping into Osama bin Laden's telephone calls to agents in this country. But since Bush makes it appear that there are sources and methods to be protected, he cannot be talking simply of garden variety wiretapping when he says, "I'm sorry we're talking about it."

One must suppose that he has in mind a more sophisticated eavesdropping technique such as the "total information" plan that became controversial in the Pentagon. Surveillance has become much more computerized than it used to be.

And it may well be that if court warrants are not requested it is because the surveillance is not of individuals but of whole groups listened to by America's big ear - the NSA.

• Daniel Schorr is a senior news analyst at National Public Radio.