A Tipping Point on Eavesdropping

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Are we at a tipping point yet? What author Malcolm Gladwell described as small things that make a big difference seems like an apt metaphor for the latest developments on civil liberties and the Bush administration. First was Thursday morning's USA Today story, declaring, "NSA Has Massive Database of Americans' Phone Calls." The story dominated the morning news shows and drove the day's events, with the President racing to the microphones in the Diplomatic Room of the White House before departing on a trip to Mississippi. Bush didn't get into the specifics of the USA Today story, but he did defend the program, saying the federal government is not "mining or trolling through the personal lives of innocent Americans."

To date, the Bush Administration has enjoyed public support for a slew of policies — including detentions without trials and new methods of eavesdropping — that critics describe as an encroachment on civil liberties. Last year, the Democrats tried to make renewal of the USA Patriot Act an issue, but in the end they buried their objections and passed a bill that Bush could sign. When the NSA's policy of warrantless eavesdropping on some domestic calls was revealed by The New York Times in December, Democrats along with many Republicans also screamed from the rafters, but the program proved popular with the public. Presidential advisers thought it was such a winner that they put it in Bush's State of the Union address. Despite calls to investigate the program and shut it down, what the White House dubs the "terrorist surveillance program" continued unabated.

Will the new revelations about the NSA tip the balance? Perhaps. According to the story, the NSA is not actually listening in on the phone calls but monitoring the patterns of calls in a kind of giant Google search, with the hope that their algorithm will detect something untoward and worth investigating. But even if your call to Aunt Sally isn't being listened to by some NSA officer, the program sounds creepy enough that no shortage of senators jumped all over it. The Republican Chairman of the Senate Judiciary Committee, Arlen Specter of Pennsylvania, said he'd subpoena the heads of the three telecommunications companies involved — AT&T, Verizon and BellSouth — before hearings to find out what they knew. Democratic Senator Diane Feinstein, who had kind words about former NSA head Gen. Michael Hayden when he was nominated to be the new CIA boss on Monday, talked ominously about a "showdown" over the Fourth Amendment's prohibition on unlawful search and seizure.

At the same time, conservative Judge Michael Luttig of the Fourth Circuit Court of Appeals in Chicago, whom many on the right wanted President Bush to name to the Supreme Court, abruptly resigned yesterday, reportedly in part because of civil liberties issues. The Wall Street Journal reported on Thursday that Luttig was shocked back in November when the Bush Justice Department announced that the government would file charges against suspected terrorist Jose Padilla as if he were a regular citizen. Just two months earlier, Luttig had written a seminal opinion saying that the federal government could detain Padilla without a charge, reasoning that the government must have had an extraordinary case against Padilla to justify such an extraordinary imprisonment. When the Bush administration reversed position and in effect acknowledged that the regular old justice system was able to accommodate the case, Luttig was enraged, saying the reversal strained the Bush administration's "credibility before the courts." It was that frustration that helped lead to his resignation, the Journal reported.

If provoking the anger of a conservative's conservative like Luttig wasn't enough, another development out of the Justice Department was nearly as stunning. On Wednesday, the Justice Department's point man on government accountability, H. Marshall Jarrett, wrote to Congress saying that he was shutting down his review of the NSA spying probe because his staff was denied access to the agency's files and personnel.

So to review the bidding: Bush's Justice Department is blocked from investigating its own controversial spy program; a leading conservative jurist resigns, reportedly in part over the government's handling of civil liberties; and a big NSA program of eavesdropping on Americans' phone-calling patterns is revealed. Will this be enough to turn public opinion against Bush on civil liberties and terrorism? Given the collapse in public support for the President on so many issues, it wouldn't be surprising.