Our Privacy is a Right We Should Defend, bya revered Jesuit theologican and former Congressman.

Privacy: A Right to Defend
by Rev. Robert F. Drinan


Sometimes, as in the case of the current domestic surveillance controversy, it's important to take the long view.

It was in 1978 that President Carter persuaded Congress to create a special secret court that would authorize wiretaps or secret surveillance on people suspected of espionage. I was one of the few members of Congress to vote against the measure.

Although little is known about the court that monitors the resulting Foreign Intelligence Surveillance Act, analysts generally assume that it has achieved its objectives while complying with the Fourth Amendment's requirement that a warrant be issued by a judge before every search and seizure.

After the 9/11 attacks on America in 2001, however, President Bush decided to finesse FISA and collect information from countless people suspected by the spy agencies of being involved in terrorist activities. Three years after this clandestine program was started, the press revealed its existence. Late last week, a federal judge in Detroit, Anna Diggs Taylor, said that the president's move to bypass FISA was unconstitutional. Still, the president remains adamant that the plan is essential and that it is justified by his broad inherent powers as commander in chief.

One of the central arguments that Taylor employed concerned the legislative history of how and why Congress authorized FISA. Congress at the time was responding to an urgent request from Carter and the intelligence agencies arguing that they needed new powers to safeguard the nation, and that even with them they would make every attempt to get information in ways consistent with the new law.

When the press finally revealed that the Bush administration had created a vast network to collect information on alleged terrorist organizations, the White House had to admit openly that -- contrary to the clear intent of the Congress -- it had defied the carefully constructed FISA machinery.

More than 200 years ago, the authors of the Bill of Rights, backed by the original 13 states, decided that the government must refrain from any search or seizures of letters or other personal material unless a judge grants a warrant. This safeguard, also secured in the Massachusetts Constitution, was designed to prevent the kind of searches that were carried out by the English crown on its political opponents.

Underlying the Fourth Amendment was the concept that citizens had a right not to have their mail opened and read. Even more now than in 1791, there is a deep feeling in America that some areas of life are beyond the purview of the government. The word privacy was hardly known in the 1700s, but after the experience of the Star Chamber in England the citizens of the colonies made it clear that the government could intrude into their lives only if a judge approves the action by issuing a warrant. A quarter century ago, Congress reaffirmed these concepts during the FISA debate.

What is known about the secret court created by FISA is that it has granted virtually every request of every president and the CIA to intercept electronic communications to citizens in America. FISA's judges are appointed by the chief justice with no hearing or vote.

The uncontradicted assumption since 1978 has been that FISA is a necessary evil to find out what terrorists and other enemies of the United States are saying and doing. The revelations that the Bush administration is defying FISA's strictures have shocked analysts who believe that the Fourth Amendment's protections are indispensable to human dignity.

The Bush administration fears that the threat of terrorism is so enormous that the government should be able to open and read our letters and e-mail traffic, and monitor our phone conversations, without the limited protections of the 1978 law.

Privacy is precious, and a longstanding concern. The right to be free from compulsory incrimination is contained in the works of St. Thomas Aquinas in the 13th century. The right to confidentiality is clear in Catholic teaching about secrecy in confession. (There are severe penalties for any priest who violates those guarantees.)

The Bush administration's Justice Department has already filed an appeal of Taylor's ruling. But it is in America's best interest that her decision prevail.

The Rev. Robert F. Drinan is a professor at Georgetown University Law Center and was a US congressman from Massachusetts from 1971 to 1981. P.S. He was forced to retire by the Vatican which insisted that priests could not be actively so engaged in politics. (My 25 year old memory of the event)