McConnell: Leading from fear hurts us all

President Bush has acknowledged that he authorized and directed the National Security Agency to conduct warrantless spying on U.S. citizens in apparent violation of the Foreign Intelligence Surveillance Act (FISA). By doing so, he has inflicted grave injury to our nation.

FISA was enacted in 1978 to provide a streamlined and secret court process to authorize electronic surveillance of citizens when probable cause existed that they were agents of a foreign power. The “probable cause” standard comes directly from the search and seizure provision in the U.S. Constitution’s Fourth Amendment –- part of the Bill of Rights –- and reflects the Founding Fathers’ concern that, without adequate checks and balances, government could become too powerful.

FISA is a reasonable hurdle. Under the law, intercepts of citizens’ communications are permitted to begin immediately and can last for up to three days while the government seeks a warrant from the special FISA court. Since its inception in 1979, that court has only rejected four of the roughly 19,000 warrant applications that have come before it.

Patriot Act amendments to FISA in 2002 expanded the government’s ability to collect and use information but did not alter the fundamental standards or processes for seeking warrants.

The president’s actions have hurt our democracy in three ways. First, citizens’ protection from arbitrary action by our government has been needlessly breached. In the words of John Adams, we are a government of laws, not of men. As Sen. Lindsey Graham (R–S.C.), a member of both the Judiciary and Armed Services committees, said on the CBS News program “Face the Nation,” “We can’t become an outcome-based democracy. Even in a time of war, you have to follow the process, because that’s what a democracy is all about: a process.”

Second, the apparent willingness of senior political and career national security officials to follow an illegal order gravely undermines Americans’ trust in their government. To be clear, such orders don’t arrive on your desk stamped “illegal.” Indeed, the Justice Department argues that the program is legal. But the people who work on such programs know the law well and, by virtue of their solemn oath to support and defend the Constitution, must make their own judgment.

Anyone can lead from the black or white, but true leadership comes in the gray area where ambiguity reigns. Here leaders should not only ask what can we do, but also is this what we want to be, is this what we are fighting for? As of this writing, one judge on the FISA court, James Robertson, had resigned in protest. That is the beginning of leadership.

Third, the revelations and attendant publicity harm NSA’s ability to perform its mission. Terrorists and other enemies now know more about how NSA works and what it cares about. And in reaction to this abuse, NSA will be subject to excessive congressional and public scrutiny for years to come, weakening its ability to attract the best and brightest workers and hurting its mission effectiveness.

In all, it is a sorry turn of events that was eminently avoidable.

McConnell, former chief of information policy and technology at the Office of Management and Budget, is president of McConnell International (www.mcconnellinternational.com).

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