Watch the video here.

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By Stuart Taylor, Jr. April 29, 2014

When Edward Snowden hit the send button on a laptop in Hong Kong last June, just shy of his 30th birthday, he became the poster boy for an acutely American conundrum: the tension between the government’s constitutional commitment to the privacy of individuals and its responsibility for the safety of the nation.

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Perhaps the commission, former Defense Secretary William Perry, and other experts who have issued similarly dramatic warnings are crying wolf. Perhaps the likelihood of any terrorist group getting a nuclear bomb is "vanishingly small," as Ohio State political science professor John Mueller has forcefully argued. Or perhaps it’s closer to 30 percent over the next 10 years, as Matthew Bunn of Harvard’s Kennedy School estimated last month in "Securing the Bomb 2008."

Our way of life may well depend on catching nuclear or biological terrorists before they can strike.

Whatever the odds, if terrorists ever smuggle a crude, Hiroshima-sized nuke into, say, Manhattan, the immediate death toll could exceed 500,000. And the ensuing panic could threaten our constitutional system, spur evacuations of major cities, kill international trade, bring the worst economic depression in history, and perhaps usher in a new dark age worldwide.

This prospect puts into perspective the efforts of many human-rights activists, Obama supporters, and journalists to weaken essentially all of the government’s most important tools for disabling terrorists before they can strike.

Wiretaps? These folks would make it far easier for terrorists to escape detection, by greatly narrowing the government’s electronic surveillance powers. Data mining through reams of commercial records in search of terrorist trails? Ditto. Detention of suspected "enemy combatants" who are very dangerous but cannot be criminally convicted? Release them! Interrogation of terrorist leaders? Just say no, even to mild forms of coercion such as angry yelling and threats. The USA PATRIOT Act? Repeal key provisions. FBI guidelines? Ban the feds from focusing more investigative resources on young Arab men from overseas than on African-American grandmothers.

Civil libertarians are rightly outraged by the brutality of some Bush administration interrogation methods; by Bush’s denial of fair hearings to hundreds of suspects at Guantanamo and elsewhere who claim that they are not terrorists; and by his years of secretly and perhaps illegally defying — rather than asking Congress to amend — the badly outdated Foreign Intelligence Surveillance Act.

But the civil libertarians’ outrage does not stop there. Indeed, the prospect of anyone in the U.S. being inappropriately wiretapped, surveilled, or data-mined seems to stir the viscera of many Bush critics more than the prospect of thousands of people being murdered by terrorists. This despite the paucity of evidence that any innocent person anywhere has been seriously harmed in recent decades by governmental abuse of wiretapping, surveillance, or data mining.

On these and similar issues, Obama will have a choice: He can give the Left what it wants and weaken our defenses. Or he can follow the advice of his more prudent advisers, recognize that Congress, the courts, and officials including Attorney General Michael Mukasey have already moved to end the worst Bush administration abuses — and kick the hard Left gently in the teeth. I’m betting that Obama is smart and tough enough to do the latter.

This is not to suggest that the president-elect will or should condone torture, bypass Congress, disregard international law and opinion, or adopt other Bush excesses that Obama and Attorney General-designate Eric Holder have assailed. But Obama does need to claim and use far more muscular powers to avert catastrophic loss of life and protect our security than most human-rights activists (and most Europeans) would allow.

The recommendations in the 112-page report quoted above — issued by the congressionally established Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism — focus mainly on the need for greater efforts to prevent WMD from falling into terrorist hands. Such efforts are critical, but at best cannot eliminate the threat. So our way of life may well depend on catching nuclear or biological terrorists before they can strike.

And the only way to catch them is through aggressive use of wiretaps, data mining, searches, seizures, other forms of surveillance, detention, interrogation, subpoenas, informants, and, sometimes, group-based profiling. Many of these powers and techniques are still tightly restricted by the web of legal restraints and media-driven cultural norms that were developed in sunnier times to protect civil liberties — and would be even more tightly restricted if civil libertarians had their way.

I sketch below how Obama should strike the liberty-security balance in three areas; in future columns I will focus on these and related issues in more detail.

• Wiretapping and data mining: Civil libertarians and most congressional Democrats have complained that the government has too much power to intercept phone calls and e-mails in search of terrorists, under the amendments to the Foreign Intelligence Surveillance Act that were adopted this summer. In fact, the government still has too little power to intercept communications and at the same time too few safeguards against misuse of the information.

FISA, which has always required judicial permission based on "probable cause" to target calls and e-mails between parties inside the U.S. but not calls from or to targets outside the U.S., is badly outdated: It is often impossible to tell where the parties to a cellphone call or an e-mail are. In addition, "the surveillance it authorizes is unusable to discover who is a terrorist, as distinct from eavesdropping on known terrorists — yet the former is the more urgent task," as Judge Richard Posner has written.

Obama, a harsh critic of Bush’s secret, unilateral defiance of FISA’s rules from 2001 through 2005, wisely broke with most liberals by voting in July to relax those rules. He should propose a complete overhaul and simplification of the almost incomprehensibly complicated law. It should be easier to use sophisticated computer data-mining programs to fish through millions of calls and e-mails for signs of possible terrorist activity. At the same time, privacy protections should be improved by tightening the rules to detect (through use of audit trails) and prevent unnecessary dissemination or retention of the intercepted information and to punish severely any misuse of it. An additional privacy protection, suggested by Posner, would be to forbid use of this information for any purpose (including, say, tax fraud prosecutions) other than to protect national security.

• Detainees: Obama should keep his promise to close the Guantanamo prison camp, within a year if possible, and should release as soon as possible and urge Congress to compensate all detainees who are found to be both nondangerous and nonprosecutable. Although Guantanamo is now about as humane as a prison housing some extremely dangerous terrorists could be, its ugly history has made it a worldwide symbol of detention without due process and brutal treatment of detainees, including many mistakenly captured innocents. Obama should also end Bush’s misbegotten system of "military commissions" to put detainees on trial for suspected war crimes, and instead should try as many as possible in ordinary military or civilian courts.

But Obama should spurn the clamor from the Left to simply release any and all of the more than 240 remaining detainees who cannot be criminally convicted. Instead, he should establish a blue-ribbon, bipartisan commission to study all the available evidence on each detainee. Many may turn out to be both extremely dangerous and impossible to convict of crimes, as the military claims, because of strict rules of evidence and other obstacles. Obama should continue to detain that group, probably in U.S. lockups, while working with Congress to establish a new process to give these men every possible opportunity to challenge the factual and legal bases for their continued detention.

• Interrogation: Obama should promptly issue an executive order reinforcing the criminal ban on torturing detainees and imposing a general rule against harsh methods. He should also direct the Justice Department to revoke or revise any as-yet-unrevoked legal opinions taking an unduly narrow view of the anti-torture law. But for reasons discussed in my May 3 column, he should preserve the option of using coercive methods short of torture in especially urgent cases, if the attorney general personally approves. And he should ask himself: What would I want done if the CIA captures another terrorist mastermind such as Khalid Shaikh Mohammed, who is determined not to talk but whose secrets — if extracted — might well save many lives?

If Obama strikes judicious balances between security and liberty, the ACLU and its allies may hysterically accuse him (as they would certainly accuse any Republican president) of trashing the Constitution. But the vast majority of voters understand that the Constitution is not a suicide pact.

Meanwhile, like the prospect of a hanging, the prospect of a terrorist nuclear bomb obliterating downtown Washington — including the Obama family — or Manhattan will concentrate the president-elect’s mind wonderfully.

This article appeared in the Saturday, December 6, 2008 edition of National Journal.

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What kind of oversight? And how should Congress update the Foreign Intelligence Surveillance Act of 1978 to deal with the unprecedented magnitude of the internal security threat posed by jihadists who covet doomsday weapons? If we get the answers wrong, we will end up with weaker defenses against terrorism, insufficient protections against the abuse of civil liberties, or both.

The most specific proposal so far is terrible — Senate Judiciary Committee Chairman Arlen Specter’s notion that Congress should ask the secret Foreign Intelligence Surveillance Court to weigh in on whether the program is constitutional. That would amount to a request for an advisory opinion on a broad matter of policy. Courts have spurned such requests since the dawn of the Republic. The reason is that their constitutional mandate is to resolve individual cases and controversies — not to help set broad policies, let alone to micromanage presidential spying on the enemy in wartime.

Specter aside, we need to adapt the judicial role in enforcing the Fourth Amendment ban on "unreasonable searches and seizures" to current realities. The courts have traditionally decided in advance (or, when speed is crucial, after the fact) whether the government has "probable cause" to target an individual for searching or electronic eavesdropping. But as Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit noted this Wednesday in a Wall Street Journal op-ed, this model is "hopeless as a framework for detecting terrorists," which amounts to "a search for the needle in a haystack."

One of the best hopes for finding jihadist infiltrators is to scan the communications of many thousands of innocent people — based on clues and patterns suggesting that a higher percentage of them than of the general population are likely to be terrorists or in touch with terrorists. Thanks to computer technology, the government can do this without violating the Fourth Amendment.

To illustrate, consider my educated guess at how Bush’s National Security Agency program sifts through calls and e-mails between the United States and foreign countries for evidence of Qaeda conspiracies.

Since long before 9/11, NSA computers have apparently used sophisticated algorithms to screen communications by the millions and to flag thousands that contain key words or fit certain patterns suggesting some rather remote possibility of a connection to terrorism. Absent scrutiny by human eyes or ears, this initial filter should not implicate either FISA or the "reasonable expectations of privacy" the Supreme Court has held to be protected.

A second filter apparently involves at least cursory inspection by NSA personnel of the contents of these thousands of computer-flagged communications, in order to identify the relatively small fraction that seem worthy of a closer look. As FISA is written, even cursory inspection requires a judicial warrant based on having "probable cause" to believe that the sender or the recipient is a foreign agent. But at this stage of the filtering process, the government has no evidence that comes close to "probable cause." (This may be one reason that Bush authorized the NSA to bypass FISA’s judicial-review requirements.)

FISA should be amended to exempt this second NSA filter from judicial oversight if the process is structured to avoid violating anyone’s reasonable expectation of privacy. This can easily be done. No one has a reasonable expectation of privacy in communications that the government cannot connect to him or her. So the key is to design the second filter — and the software — to shield the identity of the sender and receiver from the government employees scanning the communications. (Perhaps NSA is already using such a shield.)

The second filter leaves the NSA with a few hundred or a few thousand communications suspicious enough to warrant close scrutiny, including names. But even at this stage, the government might have difficulty showing that it has "probable cause" to consider the parties Qaeda operatives.

The definitions of "probable cause" in case law are so vague and elastic that they could arguably be stretched to encompass, say, a governmental guess that one in 10 wiretap targets will turn out to be a terrorist. But given the uncertainty about how courts would rule, the best solution might be to amend FISA to give the government two options.

The first would be to try to persuade the FISA court to find probable cause and issue a warrant. The second would be to proceed without court approval if a high-level official certifies in writing that reasonable grounds exist to think that the likelihood that an individual wiretap will intercept Qaeda communications outweighs the intrusion into the target’s privacy. Officials could take into consideration factors such as the tap’s expected duration.

In amending FISA, how could Congress guard against abuse or overuse of this power to eavesdrop without advance judicial approval? First, Congress should bar evidence obtained that way from being used for any prosecution that does not involve international terrorist activities. Second, Congress should tell the courts that — if necessary to avoid striking down the entire provision — they should bar use of such evidence even in terrorism prosecutions absent any (after-the-fact) judicial finding that the government did indeed have reasonable grounds for the eavesdropping. Third, Congress should bar putting any such surveillance target on any list of "suspected terrorists" absent a certification to the FISA court by a high-level official that the surveillance evidence establishes probable cause to believe that he is a terrorist.

Fourth, Congress should require tighter oversight by its own leadership or, even better, by an elite commission of security-cleared officials and private citizens that would report to Congress at regular intervals. And fifth, Congress should strengthen the formidable array of penalties for misuse of information obtained through such surveillance — penalties that, had they existed, might have deterred FBI Director J. Edgar Hoover from misusing wiretaps of Martin Luther King Jr. and many others.

The Supreme Court should and probably would uphold such a law as consistent with the Fourth Amendment. The Court’s precedents recognize the need for exceptions to the general rule that searches be based on warrants and probable cause. And no better reason for an exception exists than preventing terrorist attacks.

Civil libertarians, understandably alarmed by Bush’s push to aggrandize his powers, are demanding judicial oversight of all electronic surveillance. But they are overreacting.

One telltale libertarian conceit is that courts should be empowered to sharply curb electronic surveillance in order to force the executive branch to shift counterterrorism resources to (supposedly) more effective activities, such as recruiting additional undercover informers. But judges don’t have the information, expertise, staff, or constitutional authority to second-guess such strategic choices.

Nor are judges immune from error, or from the temptation to usurp the powers of elected officials. The federal district judges who sit part-time on the 11-member FISA court are fine public servants. But they have done some dumb things.

One was their insistence on maintaining the now-infamous "wall" between foreign intelligence and law enforcement even after it had contributed to our vulnerability to the 9/11 attacks, and even after Congress sought to tear it down by adopting the USA PATRIOT Act. In May 2002, a FISA court ruling implied that the government could not get a warrant if its primary purpose was to prosecute the target for international terrorism or espionage. I say "implied" because a glaring internal inconsistency left the meaning of the 7-0 decision unclear.

Fortunately, the three-judge FISA Court of Review reversed that decision in November 2002, holding it contrary to FISA’s stated purpose of "protecting against" terrorists and spies. One good way to protect against them is to prosecute and imprison them.

The review court also noted the possibility that the lower court’s confusing rules "may well have contributed, whether correctly understood or not, to the FBI missing opportunities to anticipate" the 9/11 attacks. In particular, FBI supervisors had construed these rules as barring a criminal-investigative agent from hunting for Khalid Almidhar, a Qaeda operative who, the CIA had belatedly told the FBI, was in the United States. The frustrated FBI agent warned in a memo, "Someday, someone will die" because of the FISA court’s wall. Thirteen days later, Almidhar helped crash an airliner into the Pentagon.

Courts do have a role to play in protecting individual rights. But giving the judiciary too much power to second-guess the executive branch could be a cure worse than the disease.

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First, the Foreign Intelligence Surveillance Act of 1978 is outdated. It bars and impedes some forms of electronic spying that may well be essential in an era of suicidal terrorists who seek doomsday weapons and are bent on mass murder.

Second, the president’s inherent constitutional power to protect the nation justified his authorization in the weeks after 9/11 (but not indefinitely) of a National Security Agency surveillance program that would otherwise have been a criminal violation of FISA.

Third, the administration may well be right in saying that leaks and media disclosures of classified information have done serious damage to national security in a few cases and possibly some damage in the case of Bush’s NSA program.

But is Bush credible when he claims that the leaking to and the disclosure by The New York Times on December 16 of aspects of the previously secret NSA program "puts our citizens at risk"? And was Attorney General Alberto Gonzales credible when he testified on February 6 that to submit to congressional regulation and judicial oversight would mean "effectively killing the program" by blowing secrets essential to its effectiveness — and that this view was the "consensus" of congressional leaders whom the administration had briefed?

I don’t believe them, except perhaps as to the inertness of some congressional leaders. And the Bush and Gonzales track records inspire no trust in their veracity. Especially when Bush suggests that the NSA program eavesdrops only on international communications involving "known Al Qaeda and/or affiliates" (emphasis added).

To the contrary, news reports plausibly suggest, the program intercepts thousands of communications, the vast majority of which involve no Qaeda affiliate on either end. Sophisticated NSA computers flag these communications as possibly suspicious based on preliminary screening of millions of communications. But on closer inspection by NSA personnel, most of the computer-flagged communications turn out to be entirely innocent. A few turn out to involve Al Qaeda.

This does not mean that the program is ineffective, unconstitutional, or even flawed. It does suggest that we cannot trust the executive branch to tell us the truth about the program, even when the only cost of doing so would be political, not operational.

The most obvious flaw in the Bush-Gonzales fixation on secrecy is that our enemies — who were already using code words to thwart surveillance before 9/11 — know perfectly well that we are spying on them every which way we can, in this country as well as abroad. They must assume that no matter where they are, the NSA may be listening to their phone calls, reading their e-mails, and fishing for suspicious patterns (frequent calls to or from the Pakistan-Afghanistan border, for example) and code words.

So how was The New York Times "helping the enemy" (in Bush’s words) when it disclosed on December 16 that soon after 9/11 Bush had authorized the NSA to intercept, without judicial warrants, communications to and from America involving suspected Qaeda members?

The terrorists already knew — from sources including FISA itself — that their calls and e-mails could be intercepted with warrants. So now they know that they can be intercepted without warrants as well. This increases the risk of interception by some unknowable degree. But the risk was already great enough to warrant countermeasures.

The administration’s claims that even closed congressional hearings would kill the NSA program by exposing essential secrets also seem wildly overblown.

Sure, it’s likely that any NSA information that is shared with more than a handful of members of Congress would leak. But the administration need not give critical secrets and sensitive technological information to Congress, possibly excepting the "Gang of Eight" Republican and Democratic leaders whom officials have already briefed in some detail.

If, say, the NSA has broken a code used by Al Qaeda for an extended time to disguise its communications — as we cracked German and Japanese codes during World War II — Congress should not and need not be told.

But try to imagine a hypothetical scenario in which the NSA has some new technology or technique that is 1) so relevant to any congressional regulation as to require disclosure to the Intelligence committees and 2) so operationally sensitive that leaks would make it a lot easier for terrorists to hide. I can’t come up with one. Can you?

It is, of course, impossible to be confident that our enemies have learned nothing of value from the news leaks about the NSA program or that they would learn nothing from any congressional effort to regulate it.

But that possibility does not differentiate the NSA program from many others about which vast amounts of information of some possible use to our enemies have been routinely made public for many decades.

Our country has long accepted some measure of damage to secrecy — and thus to security — as a price well worth paying for a free society founded on constitutional checks and balances.

Indeed, the same don’t-tip-off-the-enemy logic that the administration uses to oppose congressional regulation could be turned against the administration itself. For example, Bush and others stress that he has not authorized warrantless interception of Qaeda communications when both parties are in the U.S. This sends a most useful message to Al Qaeda: Its agents in the U.S. can safely phone or e-mail other people in the U.S. as long as they have been careful enough in their other activities to avoid creating "probable cause" for the government to suspect them.

So would-be suicide bombers living in, say, Montreal now know, courtesy of President Bush, how to reduce the risk of electronic surveillance: Move to the United States.

Bush’s reason for broadcasting this information to us (and the enemy) is to tamp down the political backlash over the NSA program. That speaks volumes about the sincerity of his concern that news leaks put "our citizens at risk."

The administration’s logic also suggests that it was wrong to ask Congress to pass the USA PATRIOT Act in 2001. Why tip off terrorists by telling Congress anything, ever, about intelligence activities? Or by spelling out in published legislation what our spies can and cannot do? Why not just claim inherent executive power to do in secret everything that Congress has authorized?

As Sen. Lindsey Graham, R-S.C., told Gonzales at the February 6 hearing, Bush’s dangerously sweeping claim of "inherent authority" to defend the country has "no boundaries." It could "almost wipe out anything Congress wanted to do," including its laws against torturing prisoners.

If Bush has his way, we would know only as much about whether and how much he is using warrantless wiretaps, secret detentions, torture, and perhaps assassinations as he chooses to tell us. Can we trust him to tell us as much as he should?

This is the same Bush who said on April 20, 2004: "Anytime you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so."

Although the context was a discussion of congressionally authorized wiretaps, Bush’s statement was flat-out false. And his sweeping, unqualified choice of words exudes intent to mislead.

As for Gonzales, consider his response during his January 6, 2005, confirmation hearing to this question from Sen. Russell Feingold, D-Wis.: "Does the president, in your opinion, have the authority, acting as commander-in-chief, to authorize warrantless searches of Americans’ homes and wiretaps of their conversations in violation of the criminal and foreign-intelligence surveillance statutes of this country?"

Gonzales dismissed this as a "hypothetical situation." But there was nothing hypothetical about it, we now know. The Gonzales Justice Department’s answer to Feingold’s question is yes — although Gonzales pretended otherwise in his February 6 testimony. See pages 3 and 35 of the Justice Department’s 42-page, January 19 defense of the NSA program’s legality.

In his February 6 testimony, Gonzales sought to parry Feingold’s charge that his earlier testimony had been misleading by taking refuge in the truism that if the president has the constitutional power to authorize something, then it is not a criminal violation.

That may be a defense to a perjury charge — but not to the charge that this man cannot be trusted to tell the truth.

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Both sides are right. But both are wrong to spend their time bickering over the legality or illegality of what Bush has authorized the National Security Agency to do. They should be focusing on how to amend FISA to provide independent checks on abuse of the NSA program without compromising its effectiveness in preventing mass murder.

"FISA is outdated and inadequate and urgently needs reform to make it effective against the jihadist threat," says Philip Bobbitt, a Texas law professor and defense expert who held a high position in President Clinton’s National Security Council and is writing a book on the war against terror.

"The critics are insisting on rules that fly in the face of the strategic realities," Bobbitt adds. "But when the president secretly decides a measure is unconstitutional, and neglects to say so (much less why), he sacrifices the legitimacy that comes from public understanding of his decision and undermines our system of public consent."

Bobbitt is exactly right, on all counts. As to Bush, the man never consults Congress when he can make a grandiose claim of executive power instead. He sometimes seems to have forgotten that the goal is "fighting terrorism, not avoiding oversight," as my colleague Jonathan Rauch detailed in the January 7 issue of National Journal.

Bush should have sought congressional authorization for his NSA program long ago. His excuse for not doing so — even now, he suggests — is that the legislative process would tip off terrorists on how to hide from the NSA. This is utterly unpersuasive and rather alarming. Carried to its logical conclusion, it would argue for ending all congressional oversight and censoring media coverage of all sensitive intelligence and defense activities.

To back up a bit: What is this NSA program, anyway?

The NSA is part of the Defense Department. It is also our largest and most important intelligence agency. Its main job for decades has been to vacuum up billions of phone conversations, e-mails, and other electronic communications abroad: Soviet generals microwaving instructions to their missile silos, Egyptian jihadists phoning their sons in Europe (or Cairo), Osama bin Laden calling Saudi Arabia from Pakistan. All this is uncontroversial, at least in this country.

What’s controversial is the surveillance of communications between people abroad and in America. FISA, a 1978 law of great complexity, forbids such surveillance unless the government (usually the FBI) obtains a warrant from a special federal court based on "probable cause" to believe that the surveillance target is an agent of a foreign power or group (or a criminal).

After 9/11 had dramatized the apocalyptic intent and terrifying capabilities of the global Qaeda-led conspiracy to mass murder Americans, the NSA and the White House reacted as they should have. They saw an urgent need to use the NSA’s vast technological resources for a program of surveillance of communications between suspected Qaeda agents and other people (collaborators and innocents alike) when one party to the communication is in this country and the other is abroad.

"This is hot pursuit of communications entering or leaving America involving someone we believe is associated with Al Qaeda," Gen. Michael V. Hayden, a veteran intelligence professional who had headed the NSA until Bush made him deputy director of national intelligence last year, explained in a compelling January 23 speech.

But FISA stood in the way. So Bush bypassed its cumbersome administrative and judicial review requirements because — notwithstanding narrow exceptions for emergencies — they sometimes make it impossible to move as fast as the terrorists. Bush also bypassed FISA’s "probable cause" burden of proof. As he should have.

If the feds want to spy on a man based on evidence suggesting a 25 percent probability that he is the next Mohamed Atta, they should be able to spy on him, even though most judges would find probable cause to be lacking.

For this reason, I proposed in 2003 that Congress "lower the FISA burden of proof from ‘probable cause’ to ‘reasonable suspicion.’ " It turns out that Bush had already done this in 2001 — secretly and unilaterally. He should now ask Congress to remove doubts about the program’s legality by amending FISA.

The administration says that the NSA program is already legal. It points to the September 18, 2001, congressional vote authorizing use of military force against all those involved in the 9/11 attacks. And it argues that this broadly worded resolution effectively amended FISA by implicitly authorizing Bush to order electronic eavesdropping targeted on Al Qaeda without regard to FISA’s requirements.

Most experts correctly dismiss this argument as extremely weak, for reasons too complex to detail here.

The administration’s fallback argument is stronger, albeit more risky politically: FISA is unconstitutional if interpreted as barring the commander-in-chief from doing what Bush did in September 2001. Back then, it may well have been essential to launch the NSA program without awaiting congressional action.

But the inherent-power claim has weakened with each passing day since then. It is one thing to say that the president has inherent power to disregard an outdated law during an emergency in which immediate action may be the best hope of saving many lives. It is something else to say that the president can secretly continue to disregard that law for over four years without ever seeking to amend it. By doing this, Bush has undermined both his legal and his political positions while inviting a backlash that could jeopardize the NSA program and hurt the presidency. (The peskily pre-emptive Jonathan Rauch made that point, too, in his January 7 column.)

Many critics also argue that even if approved by Congress, the NSA program would violate the Fourth Amendment. I disagree.

It’s true that the courts have generally held most criminal-investigative searches and wiretaps to be unconstitutional absent judicial warrants based on probable cause that evidence of crime will be found. But the Fourth Amendment’s plain text requires only that searches be "reasonable."

It should be obvious that a wiretap designed to prevent a mass murder, when every moment’s delay could make a difference, can reasonably be authorized without requiring as much evidence as a wiretap designed to find burglar tools or a bag of marijuana.

The Supreme Court has dispensed with warrants and probable cause for many types of searches. Examples include warrantless "hot pursuit" of criminal suspects; warrantless car stops and "stop-and-frisk" encounters with pedestrians based on reasonable suspicion (not probable cause) of criminal activity; highway sobriety checkpoints; and mandatory drug testing of transportation workers and high school athletes with no individualized suspicion at all.

The Court has reasoned that "special needs" other than criminal prosecution justify such searches. The quintessential special need is preventing harm to public safety. That is the real (if sometimes unacknowledged) reason why nobody questions the practice of searching all airline passengers. And that is why FISA itself watered down the usual criminal-investigation requirement 28 years ago, by requiring only probable cause to believe that the target is a foreign agent (even absent evidence of crime).

In 2001, as Hayden explained, "the standard by which we decided … what was reasonable would understandably change, I think, as smoke billowed from two American cities and a Pennsylvania farm field."

Hayden is a serious man. The critics who trash every Bush move to fight terrorism without proposing effective alternatives are not. We are at war. And in this era of doomsday weapons, we are in grave danger. The response of many civil-liberties activists and some politicians has been to fight tooth and nail against even the most effective and innocuous new investigative powers. This stance is worse than useless.

Those who call Bush a criminal especially miss the point. After doing the right thing in the wake of 9/11, he has damaged the nation (and arguably broken the law) by unnecessarily prolonging his unilateral defiance of FISA. The president needs fewer yes-men and yes-women and more advisers in the mold of Talleyrand. That was the guy who memorably reproached Napoleon for a more lethal excess of executive power two centuries ago: "Sire, it was worse than a crime. It was a mistake."

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Ever since we first read those chilling words, many of us have felt a reflexive horror of being bugged, wiretapped, or (now) tracked by the FBI’s fearsomely named Carnivore program, which sifts through computer networks for evidence of crime.

And who can forget the wiretaps and buggings that fueled "the savage campaign of defamation waged by J. Edgar Hoover as head of the FBI against Dr. Martin Luther King," in the words of Rep. Barney Frank, D-Mass.? (Some have forgotten that it was Robert F. Kennedy who authorized the taps.) Presidents Roosevelt, Truman, Johnson, and Nixon also used wiretaps for political ends.

So when the government seeks broader electronic surveillance powers, as Attorney General John D. Ashcroft is doing now, a lot of us instinctively worry about unleashing some kind of Big-Brother-Hoover-Nixon monster to spy on people and then blackmail or smear them.

Now is a good time to ask whether this fear is exaggerated. The case for more surveillance is pretty obvious: We need to use every available tool to prevent the mass murders of thousands or even millions of Americans. The case against is the familiar concern that the government could abuse the new powers to destroy or damage our privacy. To strike the best balance, we must scrutinize that risk with some skepticism. What bad things could happen, and how likely are they?

Abuses are always possible, especially in wartime, when the temptations for overzealousness are at their zenith and the internal safeguards are at their weakest. "This isn’t going to be limited to suspected bombers," as UCLA law professor Eugene Volokh wrote recently in Slate. "Already the government is (wisely) considering trying to track those who financially assist terrorists; financial institutions will find their records (which may include your and my records) being investigated. There will be a peace movement, and there might be reason to suspect that our enemies will try to influence it; members of the movement might find themselves being investigated."

So this is not to suggest that Congress should give the government carte blanche-or, indeed, should give it any new surveillance powers at all unless they might help fight terrorism. While the details of Ashcroft’s proposals are complex, the fundamental question is whether the government should have a relatively free hand to spy on suspected terrorists and their associates-including people suspected of ordinary crimes or immigration violations whose possible links to terrorism may largely be a matter of hunch and speculation-without producing the specific evidence required in ordinary criminal investigations.

What dangers would such new powers present? Well, officials might be tempted to stray from their core counter-terrorism mission by going after (say) suspected drug dealers who might possibly be linked to the Medellin cartel, which has engaged in terrorism outside the United States. Officials might spy on anti-globalization demonstrators or peace protesters who throw rocks through the windows of government buildings. And they might already be using their current foreign intelligence surveillance powers to fish for evidence of terrorism by tapping or bugging leaders of Islamic and Arab groups in the United States, whose religious and political discussions are sometimes seeded with hot anti-American rhetoric.

Many and probably most of the conversations overheard and e-mails intercepted would be innocent. That’s inevitable when you throw a broad net in the hope of catching people who are very hard to find. And the tappers and buggers might well overhear intimacies or embarrassing disclosures that are none of the government’s business. But any officials tempted to abuse such information would be running very serious risks of removal from office, disgrace, and even criminal prosecution.

A major reason for the electronic abuses during the bad old days of J. Edgar Hoover was that until 1967, the Supreme Court had held that the Constitution imposed no limit on governmental wiretapping of anyone, for any reason. Nor were there serious penalties to deter Hoover from using his dirt to play politics.

Now it is a federal crime for the FBI director or anyone else to leak information gleaned from wiretaps or bugs for political ends or for other improper purposes. And now the Justice Department, FBI, and other agencies involved in surveillance are themselves scrutinized by internal and external watchdog agencies with mandates to blow the whistle on any abuses. Washington lawyer Stewart Baker, former general counsel of the National Security Agency, wrote in an online dialogue with Volokh in Slate: "As I once said to an outsider skeptical of NSA’s commitment to the law, `Why am I sure that the agency isn’t breaking the law? Because there are five outside offices with authority to audit our conduct, and those agencies are headed by five ambitious people whose careers would be made if they could uncover violations of law at NSA.’ "

And now our governmental, media, and academic elites are replete with one-time antiwar protesters and others who are quick to pounce on any sign that the FBI or other agencies are up to no good. "Defending civil liberties is at the heart of the Baby-Boomer self-image, a self-image that’s been packaged and sold to adolescents ever since," as Baker wrote. "However powerful and rich and snobbish we ex-teenagers become, we still see ourselves as rebels fighting a lonely battle against overweening authority. To make that myth work, we need an overweening authority to battle, preferably one that can’t fight back. Intelligence agencies are perfect for that role." So we have watchdogs galore.

Have any grave or widespread invasions of privacy in the past 25 years stemmed from surveillance of suspected terrorists-or of anybody, for that matter? Not that I’ve noticed. I do know of one troublesome case of suspected political abuse of information gleaned from a foreign intelligence wiretap in the 1980s.

Perhaps I’ve missed others. But I’d wager that for every such case, there have been dozens and dozens of other cases of people who have seen their privacy or reputations unfairly shredded by or in media stories unrelated to governmental surveillance. "I’d worry more about The New York Times going through my trash than about the police doing it," observes Yale law professor Kate Stith, a criminal law expert.

Of course, the notion that FBI agents may be listening in on our conversations gives us the creeps, even if listening is all they do. "You had to live," Orwell wrote in 1984, "in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized."

But the government has only a limited number of agents to spend their time listening to wiretaps. Agency heads have little incentive to waste their time and budgets on unwarranted snooping. And they will have to justify any and all taps and bugs to their superiors, to subordinates who might blow the whistle, and to judges.

So the chance that they will tap or bug or Carnivore you or me or even the Arab-American family down the street will remain quite small. Indeed, the chance that they will spy on you is a great deal smaller than the chance that your employer is monitoring your e-mail and your Web surfing. It is probably smaller than the chance that a computer hacker will get into your e-mail or a neighborhood kid will overhear your cell phone conversation.

"Is privacy about government security agents decrypting your e-mail and then kicking down the front door with their jackboots?" James Gleick wrote in The New York Times Sunday Magazine five years ago. "Or is it about telemarketers interrupting your supper with cold calls? It depends. Mainly, of course, it depends on whether you live in a totalitarian or a free society." We live in a free one.

Eighteen years ago, in The Rise of the Computer State, the respected journalist David Burnham wrote: "The question looms before us: Can the United States continue to flourish and grow in an age when the physical movements, individual purchases, conversations and meetings of every citizen are constantly under surveillance by private companies and government agencies?"

It can. It has. And now that the computer state has risen indeed, the threat of being watched by Big Brother or smeared by the FBI seems a lot smaller than the threat of being blown to bits or poisoned by terrorists.

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George’s subordinate Alan Fiers (the witness) is summoned to an October 1984 meeting in the office of the late CIA Director William Casey. George and Oliver North are there. "Ollie," says Casey, "Alan tells me you’re operating in Central America. Is that true?" "No, sir," responds North. "Good," says Casey. "I want you to understand that you’re not to operate in Central America." Later, George tells an incredulous Fiers, "What you saw going on in there was a charade." The implication: North would continue operating in Central America, with Casey’s blessing.

Item: A Nov. 24, 1986, White House meeting is described as follows in Independent Counsel Lawrence Walsh’s indictment of former Defense Secretary Caspar Weinberger:

President Reagan and his top seven aides are discussing how to respond to the rapidly breaking Iran-Contra scandal. Attorney General Edwin Meese III tells the group that his investigation has concluded that the president had not been told of a possibly illegal 1985 arms shipment. Some or all of those present know this to be false. But nobody corrects Meese, who tells the nation a similar story the next day, at a nationally televised news conference.

Item: Toward the end of an April 15, 1973, meeting with President Nixon, White House Counsel John Dean was surprised when Nixon "got up out of his chair, went behind his chair to the corner of the Executive Office Building office, and in a barely audible tone said to me he was probably foolish to have discussed [E. Howard] Hunt’s clemency with [Charles] Colson." This led Dean to suspect that the office was bugged. (It was.)

These are all variants on one of the more colorful aspects of modern American political theater: the Washington charade.

This column’s modest purpose is to make a small beginning at the large task (to be completed in somebody’s doctoral thesis) of deconstructing the Washington charade, by assembling a few examples (readers are invited to send more, including historical and literary parallels), suggesting subcategories, tracing historical roots, and placing it in the larger universe of organized deception.

The Washington charade may be defined to include all staged encounters in the political-legal world in which one or more participants (usually acting in concert) say things for the purpose not solely of communicating with one another, but of deceiving third parties.

The 1984 Casey episode is the charade in almost its purest form: officials having a conversation known by each of them to be permeated with falsehood, in an atmosphere dripping with conspiracy, for the purpose of generating evidence that can- be used later to deceive others.

Casey expected to be asked by congressional oversight committees whether he knew of any oversight restrictions on covert operations against Nicaragua Now he could respond by relating his staged conversation with and all those present could corroborate him without committing. provable perjury. Maybe Casey taped it, too-just to be safe.

The Nixon episode is a different species-a sort of auto-charade, in which the main actor speaks in part for the benefit of a hidden tape recorder known only to him. Or only to her: Think of Gennifer Flowers surreptitiously taping phone calls in which she tried to draw Bill Clinton into . sex talk. Or the video of Rasheeda Moore urging the amorously inclined Marion Barry Jr. to smoke some, crack; the auto-charade is a staple of undercover agents.

While the classic Washington charade unfolds in .- the inner sanctums of the executive branch- presumably never coming to light in most cases-Congress engages quite publicly in similar conduct. Members are often given a chance to vote on both sides of an issue or to cast harmless votes they don’t really mean.

The Washington charade has deep historical roots. Indirection and circumlocution have been used by people hatching criminal schemes from time immemorial. The purpose seems to be to still one’s own conscience, to avoid an unambiguous manifestation of criminal intent to any witness who might later make trouble, or both.

A precursor was Henry II’s "Who will free me from this turbulent priest?" Some knights, taking this as a veiled order to murder Thomas à Becket, promptly did so.

The effort to insure "plausible deniability" by discussing sensitive operations in circumlocutions terms became institutionalized by the U.S. intelligence network during the Cold War. Initially the purpose was to conceal the U.S. role in covert operations overseas from foreigners. It evolved into deceiving Congress and the public, to insulate the president and aides from legal and political accountability. And so we may never know whether President Eisenhower ordered a CIA hit on Congolese premier Patrice Lumumba or whether President Kennedy ordered the attempts on Fidel Castro.

It was to restore accountability that Congress, beginning in 1974, required that all covert intelligence operations be authorized by "findings,” signed by the president and conveyed to Congress in a "timely fashion.”

The Reagan White House rampantly evaded these safeguards. Reagan authorized arms shipments to Iran in 1985 before signing a finding; National Security Adviser John Poindexter tore up a subsequent finding to avoid political and legal jeopardy; the arms sales were not reported to Congress; and Poindexter gave Reagan ” absolute deniability" by claiming that he kept the president in the dark about the diversion of Iranian arms-sales profits to rebels in Nicaragua-even Though poindexter later testified, "I’m sure the president would have enjoyed knowing about it."

The full flowering of the Washington charade from less elaborate games of deniability may have been spurred in part by the Reaganites’ eagerness to evade the "finding" requirement; one can imagine the charades Poindexter may have acted out with Reagan to satisfy himself that the president would "enjoy" the diversion.

Two phenomena unknown in Henry H’s time may also be at work here, as in the case of the Wall Street charade practiced by insider traders.

The first is the modern litigation bar’s development of plausible deniability into a virtual legal specialty, called "witness preparation," which occupies a morally ambiguous world where zealous representation shades into criminal conspiracy. Many a lawyer will advise his client (or friendly witness) about the probable legal consequences and the plausibility of various possible scenarios before pinning the client down to an account of the facts. The client will then tell a story serendipitously fitting the best scenario the lawyer has offered him. Often he will be lying. But the witness-preparation charade has enabled the lawyer to facilitate the lie while avoiding guilty knowledge.

To avoid "suborning perjury," the late Edward Bennett Williams would "help the client come up with a plausible story to explain away incriminating facts…subtly, through leading questions and a certain amount of winking and nodding," according to Evan Thomas’ 1991 Biography, The Man to See. The government is full of lawyers practiced in this art.

The second new phenomenon is the growing pervasiveness of the concealed tape recorder, the wiretap and other forms of bugging. Officials nowadays often find it prudent to assume that someone might secretly be taping them. Just as Dean suspected Nixon, Nixon (wrongly) suspected Dean. The president’s own taping system recorded him in April 1973 fretting about a March 21 meeting with Dean: ‘I just wonder if the son of a bitch had a recorder on him."

Fear of taping encourages artifices more elaborate than those that might suffice to protect against possible whistleblowers, whose integrity or recollection can be attacked. It was not Dean but the tapes that brought Nixon down.

There are cruder defenses against the hidden recorder, of course. Frank Rizzo, then mayor of Philadelphia, took city Democratic leader Peter Camiel into a hotel bathroom in 1973 and turned on the water full blast before trying to bribe him for a political favor, according to Camiel.

While running water won’t fool a first-rate tape recorder, the Washington charade has its own pitfalls, even for those who revel in deception and criminality: The very indirection that provides Protective may misunderstand their elliptical marching orders or later pretend they did.

As the Senate’s Church Committee reported in 1975: "A system which relies on secrecy, compartmentation, circumlocution, and the avoidance of clear responsibility…creates the risk of confusion and rashness in the very areas where clarity and sober judgment are most necessary."

Thus was Iran-Contra hauntingly foreshadowed.

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They have two things in common: None deserves to go to prison. Yet all probably should-for a few months-to deter others from doing what they did.

But that’s not quite the way it’s going to turn out. And the differing prospects of these three men shed an unflattering light on our system of justice and our society’s moral sense of proportion.

Freeman, former head of arbitrage at Goldman, Sachs & Co., was sentenced April 17 to four months (plus a $1 million fine) for seeking inside information about a pending takeover and using it to unload $500,000 in options.

Poindexter, convicted April 7 on five felony counts of false statements to Congress and obstruction of its investigations into the Iran-Contra affair, faces a theoretical maximum of 25 years.

But he will probably get two years or less-and maybe no prison time at all, like his co-conspirators Robert McFarlane and Oliver North.

Fred Hagler acted as middleman between a small-time drug dealer and buyers (who turned out to be undercover operatives), and attended the sale. He was sentenced in April to 20 years, without parole.

A 37-year-old father of three, he will be locked up until at least 2007, and that’s if he earns all possible good-time credits. But for an unusual break he received from the prosecution, Hagler would have faced a congressionally mandated minimum prison term of life without parole.

Courtroom of the Absurd

This for a doer of odd jobs who eked out a meager existence with his common-law wife and children in a Los Angeles ghetto, a man who was wiretapped asking a customer for a $60 loan so he could go "down to Toys-R-Us" to buy his little boy a birthday present.

Convicted of helping sell the 2.3 ounces for $1,350, Hagler fell under a mandatory minimum of 10 years without parole for selling more man 50 grams (1.8 ounces) of crack. The term is "enhanced" to 20 years if the defendant has one prior drug felony conviction, no matter how petty, and to life without parole if he has two.

Hagler got 20 years instead of life because federal prosecutors in Los Angeles recognized the absurdity of giving him a stiffer sentence than most murderers and asked the judge to disregard one of his two minor prior convictions for cocaine possession.

The prosecutors demonstrated more sense than Congress, which gave judges no discretion at all to go below the statutory minimum sentence.

If 20 years is lenient for a Hagler, what about a Freeman or a Poindexter, whose crimes were far greater?

In fact, it would be pointless cruelty to send Freeman to prison if the only question were what punishment he deserved, in the retributive sense. Publicly humiliated and professionally ruined, he poses no danger to society. U.S. District Judge Pierre Leval, noting that insider trading had become a "standard practice of arbitrage," found Freeman "chastened" and basically decent.

But the judge said jail time was needed to deter the many others on Wall Street who "think themselves authorized to disregard the law."

A case like Freeman’s is hard because the goals of retribution and deterrence point in opposite directions.

How Low to Stoop

When a defendant’s actions typify the ethical standards of his community or profession, the case for retribution diminishes. We cannot fairly attach great culpability to the failure to be more ethical than one’s peers. But the more corrupt the ethical standards of the defendant’s peers, the greater the need to make an example of him.

How big a piece should we take out of one person’s life to teach others a lesson? Not very big. Judge Leval’s four months seems about right.

Similar logic applies to Poindexter. His crimes were serious, but motivated by a sincere, if misguided, sense of duty. His career was exemplary, from the time he led his class at the Naval Academy until he became Ronald Reagan’s national security adviser.

The president wanted him to do things that could not be done without deceiving Congress and the public, which the president and lots of his other aides did too. It would be unfair to imprison the dutiful Poindexter alone for the Iran-Contra lies while Reagan sits in California and North grandstands around the country.

But executive-branch officials need it kicked into their heads that they do not have a license to lie. Six months would be a reasonable compromise.

Fred Hagler seems at first a different story. Wall Street Journaleditorialists and others who see Freeman and Poindexter as persecution victims shed no tears for Hagler’s ilk. It’s hard for most of us to identify with a drag dealer.

But most of us were not orphaned as children, as was Hagler by his mother’s death and his father’s desertion. Most of us did not grow up in foster homes and drop out of high school. Most of us have not had to scratch out a living on the streets of South Central Los Angeles, where the drug culture is pervasive and where Hagler had to dodge dealers to take his daughter out for ice cream.

By the standards of his community, Hagler’s criminal record is unimposing: in 37 years, a $65 fine for battery, a $50 fine for disturbing the peace, a suspended one-year sentence for having a small amount of cocaine in 1983, and 90 days in jail for a similar charge in 1984. And now the 2.3-ounce crack conviction, which he is appealing.

No killings. No rapes. No robberies. No burglaries. No thefts. No weapons. No large quantities of drugs.

The worst thing he did, if he did it, was to sell small amounts of drugs to eager buyers who would have bought them elsewhere if not through him.

Like Freeman and Poindexter, Hagler joined in the criminality that surrounded him. His crime was as representative of the moral standards of his community as was Freeman’s.

Despite the demonization of drag dealers that led to the insane sentences now on the books, Hagler may be the least culpable of the three: He was a struggling small-timer; Freeman and Poindexter were highly placed enough to set ethical standards for others.

The retributive justification for giving Hagler any prison time at all is weak. Deterrence probably does call for giving people like him a few months, so others will know they cannot flout drug laws with impunity. But 20 years without parole is obscene.

The prosecution said the sentence was justified because "drug dealers are destroying that community."

Hogwash. Hagler’s contribution to the destruction of his community ranks with a cigarette-selling pharmacist’s contribution to the 300,000 deaths a year caused by smoking.

Nor is there much deterrent value to draconian prison terms for small-time drug defendants. To the contrary, since they were adopted in 1986 and 1988, the supply of drugs has increased.

A glimpse of what these laws have done came at the sentencing of Fred Hagler and Ms co-defendant, 20-year-old Stephen Green, who received the 10-year mandatory minimum.

Green’s mother, in the back row, began wailing for mercy for both men. Henry Weinstein of The Los Angeles Times reported the scene:

"Please! Please!" begged Mrs. Green, a mother of eight with a $3.75-an-hour job at a convalescent home. "Fred is a good man. He works on cars. We’re poor black people. This is a terrible neighborhood."

Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit, sitting specially as a district judge, told her gently that "this is extremely painful" but Congress had given him no choice.

"Stephen is young," the judge said. "He’ll survive this."

"No, he won’t," yelled Mrs. Green’s daughter, Dietra. Then she led her weeping mother away.

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