January 23, 2006

Op-Ed Columnist

What's Left Unsaid

By BOB HERBERT

Have you ever talked sexy to your wife or your girlfriend - or your husband or your boyfriend - on the telephone? Would you keep talking if you thought that one of Dick Cheney's operatives was listening in?

Talk about a chilling effect.

What if you were thinking of running for Congress and you tried to bolster your understanding of terrorism by speaking with knowledgeable but controversial figures in the Middle East? How would you feel if you knew - or even suspected - that government agents were monitoring your conversations? Would you be less likely to engage in those conversations? Would you begin to censor yourself? Would your contacts still be willing to speak freely if they thought the feds were listening in?

Freedom of speech in the United States covers matters trivial and profound. The corrosive damage that is being done to the First Amendment, that cornerstone of free speech, has been largely overlooked in the controversy over President Bush's decision to permit the government to eavesdrop without warrants on phone calls and e-mail messages inside the United States.

Most of the attention generated by this domestic spying program has understandably been focused on its affront to the Fourth Amendment, which prohibits unreasonable searches, and its brazen violation of the Foreign Intelligence Surveillance Act, which established clear-cut rules for electronic surveillance in the U.S.

But there's an additional danger. When the government's spies are allowed to snoop willy-nilly on phone calls and e-mail in the United States, without the important legal constraint of having to seek a warrant, it means that the all-important First Amendment has developed a chill, symptomatic of a life-threatening illness.

The ostensible aim of the president's domestic surveillance program, conducted by the supersecret National Security Agency, is to home in on communications into and out of the United States that involve individuals or organizations suspected of some sort of terror connection. But, as The Times reported last week, F.B.I. officials have repeatedly complained that the N.S.A. has bombarded them with thousands upon thousands of unsubstantiated tips - names, telephone numbers, e-mail addresses and so forth - that have either led nowhere, or to completely innocent individuals.

Whatever its stated goals, the N.S.A. seems to be operating the greatest fishing expedition in the history of the world.

The American Civil Liberties Union, in a lawsuit seeking a halt to the spying, warned that scholars, lawyers, journalists and others who communicate with people outside the U.S. are already experiencing a chilling effect. People who are doing nothing wrong, but who feel they may become targets of the program, for whatever reasons, are curtailing their conversations and censoring their correspondence, according to the suit.

Laurence Tribe, a professor of constitutional law at Harvard, noted that people who are aware of the surveillance program and who believe that their political views may be seen as hostile by the government, may also become less candid in their telephone conversations and e-mail. Others could unwittingly become the victim of contacts by individuals that the government may be interested in.

He gave an example:

"I recently got a series of e-mails from someone, quite without invitation, that got rather scary in the sense that they started saying positive things about Osama bin Laden. I asked the person in reply to stop e-mailing me, and I got an e-mail today saying, 'Your request is permanently granted.' But in the meantime, granted or not granted, that could easily put me on some kind of targeting list."

Speaking about the potential long-term effect of widespread domestic spying, Professor Tribe said:

"The more people grow accustomed to a listening environment in which the ear of Big Brother is assumed to be behind every wall, behind every e-mail, and invisibly present in every electronic communication, telephonic or otherwise - that is the kind of society, as people grow accustomed to it, in which you can end up being boiled to death without ever noticing that the water is getting hotter, degree by degree.

"The background assumptions of privacy will be gradually eroded to the point where we'll wake up one day, or our children will, and it will seem quaint that people at one time, long ago, thought that they could speak in candor."

Copyright 2006The New York Times Company