Jurist Editorial: Dangers of Presidential Spying

Jurist has a new editorial up by guest columnist Brian Foley of Florida Coastal School of Law. Foley writes about what he perceives as the "real" danger of the Bush administration's authorization of the NSA warrantless eavesdropping program. According to Foley:

The most important issue is not, however, whether people feel comfortable talking on the phone or sending emails. The real danger is that electronic surveillance can be used to increase and solidify executive power. A president can collect private information not simply about “ordinary Americans,” but extra-ordinary ones – political rivals, journalists, and activists – and use this information against them. After all, if a president is convinced he is right, he may well view those who disagree with him as dangerous and believe it’s legitimate to use any means available to stop them.

Foley compares the danger here to what came to light "in the aftermath of President Nixon's harassment of political enemies" 30 years ago. Foley also takes a look at a few "scenarios" of what could happen if executive power is allowed to expand too far with this type of "spying" program, including the possibility of the executive using illicitly obtained information against political enemies.

According to Foley, the biggest danger is not really the theoretical potential harm to the privacy rights of ordinary citizens. Rather, it's the theoretical potential harm to the political process that could result from allowing unchecked executive power. Foley concludes:

The virtually undetectable abuses that can result from presidential spying pose an enormous and immediate threat to the viability of our government. Although the issue generally has been framed as a legal issue, perhaps to be decided ultimately by the Supreme Court – while the present administration continues surveillance under its more than four-year-old program – we must recognize that presidential spying is first and foremost a political issue. Congress should not wait for the courts to determine whether the president has broken the law but should act immediately to stop the spying – before this or any future president renders his opponents too scared to do anything but submit to his will.