There is a topic of national interest that has been bubbling under the surface since the terrorist attacks of Sept. 11, 2001. Actually, in some circles, the debate was in progress long before 9-11.

At the center of this debate is the question of which is more important: national security or personal privacy.

The debate is couched in different terms by different segments of the population, but it keeps coming down to this: how much intrusion into our private lives will we accept in exchange for an expectation of national and personal security.

The Fourth Amendment protection against warrantless searches and seizures are a primary focus for some debaters. The “exclusionary rule” also comes into the debate.

In many minds, the debate is over as much liberty as we can hope to enjoy weighed against the “war on terrorism.” Do we all accept that the President can order the National Security Agency and/or FBI and Homeland Security to tap people’s phones, intercept Internet communications, check what we are reading, who we associate with and on and on.

Sidebars to the debate include the question of whether or not the government can torture terror suspects and whether we should all be required to carry passports, national ID cards, or similar proofs of our existence.

The list of possible transgressions against personal freedom with the promise of preventing future terrorist attacks on US soil are almost endless.

The congressional battle over reauthorization of the Patriot Act is a key element in this ongoing national debate.

I don’t have an answer but I do have grave concerns about the creeping police state mentality, not just of law enforcement people, but lawyers, judges, academics and others who should be clarifying the debate.

The Jan. 9, 2006 issue of Time magazine offers a debate between former Georgia Congressman Bob Barr and columnist Charles Krauthammer over the President’s power to order wiretaps and other surveillance without a warrant. Barr is against it and says the President puts himself above the law. Krauthammer is for it and asks how else will we catch the bad guys?

But Time isn’t the only place where this debate waxed hot. You’ll find it in other magazines, on television and radio. And you’ll also see the fallout from the debate.

One of the most prominent of these involves defense lawyers who will actually challenge the spying on their clients as a defense against other crimes.

The New York Times reported from Washington in late December that defense lawyers in some of the country’s biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency (NSA) used illegal wiretaps against several dozen Muslim men tied to al Qaeda.

According to The Times, the lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out.

The expected legal challenges, in cases from Florida, Ohio, Oregon and Virginia, add another dimension to the growing controversy over the agency’s domestic surveillance program and could jeopardize some of the Bush Administration’s most important courtroom victories in terror cases, legal analysts say.

The question of whether the NSA program was used in criminal prosecutions and whether it improperly influenced them raises “fascinating and difficult questions,” said Carl W. Tobias, a law professor at the University of Richmond, who has studied terrorism prosecutions.

“It seems to me that it would be relevant to a person’s case,” Tobias said. “I would expect the government to say that it is highly sensitive material, but we have legal mechanisms to balance the national security needs with the rights of defendants. I think judges are very conscientious about trying to sort out these issues and balance civil liberties and national security.”

While some civil rights advocates, legal experts and members of Congress have said President Bush did not have authority to order eavesdropping by the security agency without warrants, the White House and the Justice Department continued to defend the legality and propriety of the program.

Trent Duffy, a spokesman for the White House, declined to comment in Crawford, TX, when asked about a report in The Times that the security agency had tapped into some of the country’s main telephone arteries to conduct broader data-mining operations in the search for terrorists.

But Duffy said: “This is a limited program. This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner. These are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches.”

He added: “The president believes that he has the authority—and he does—under the Constitution to do this limited program. The Congress has been briefed. It is fully in line with the Constitution and also protecting American civil liberties.”

Disclosure of the NSA program has already caused ripples in the legal system, with a judge resigning in protest from the Foreign Intelligence Surveillance Court in December. The surveillance court, established by Congress in 1978 to grant warrants in terrorism and espionage cases, wants a briefing from the Bush Administration on why it bypassed the court and ordered eavesdropping without warrants.

At the same time, defense lawyers in terrorism cases around the country say they are preparing letters and legal briefs to challenge the NSA program on behalf of their clients, many of them American citizens, and to find out more about how it might have been used. They acknowledge legal hurdles, including the fact that many defendants waived some rights to appeal as part of their plea deals.

Government officials, in defending the value of the security agency’s surveillance program, have said in interviews that it played a critical part in at least two cases that led to the convictions of al Qaeda associates, Iyman Faris of Ohio, who admitted taking part in a failed plot to bring down the Brooklyn Bridge, and Mohammed Junaid Babar of Queens, who was implicated in a failed plot to bomb British targets.

David B. Smith, a lawyer for Faris, said he planned to file a motion in part to determine whether information about the surveillance program should have been turned over. Lawyers said they were also considering a civil case against the president, saying that Faris was the target of an illegal wiretap ordered by Mr. Bush. A lawyer for Babar declined to comment.

The question of whether or not defense lawyers in actual terrorism or criminal cases will win or lose seems academic. Of greater importance is how all this spying and eavesdropping will affect innocent people, particularly those who might come into innocent contact with suspects who are targeted for surveillance. The innocents whose phones and e-mails will also be swept into the net of surveillance are the real reason so many people object to the process. Their bank accounts may be scrutinized, something which isn’t so hard to do anyway.

There are those who argue that if you are innocent you have nothing to fear from such surveillance, whether with or without a court order, but I don’t feel that way.

The innocent do have a lot to fear from a process which allows such spying. I don’t know how this will all settle out, but I am on the side that prefers warrants authorized by a judge, even if for no other reason than that it will slow the creeping infringement on other freedoms. I hope all of that is taken seriously the next time Congress takes up the Patriot Act, which will be in only a few weeks.