The Bush/NSA Wiretaps

After the New York Times broke the Bush-NSA wiretapping story, there’s been a lot of misinformation and disinformation being thrown around. I wanted to address some of the more prevalent talking points, because this issue is a lot more important than it might appear.

What Bush did is legal. The jury is still out on this one, and it’s more complicated than many would have you believe. No one is arguing that the President doesn’t have the authority to order wiretaps for suspected terrorists and their associates in the interest of national security. The problem is, those wiretaps have to meet the approval of a special court created under the Foreign Intelligence Surveillance Act, or FISA. By all accounts, the court is barely more than a formality; as is popularly reported, out of over 19,000 warrant applications in the history of the court, only 5 have been refused. And the warrants can even be granted retroactively, up to 72 hours from the initial wiretap. Bush’s domestic spying purposefully and admittedly bypassed the FISA court, and received no warrants for the wiretaps.

Bush is basing his defense on a classified legal order, issued with Congressional approval in the wake of 9/11, which reportedly provides for broad executive powers to order searches in the interests of national security. Because the document is classified, we are forced to rely on Bush’s interpretation of its exact language. But no matter what Bush and Congress might have agreed on, they do not have the power to supersede the Constitution’s 4th amendment, which protects American citizens against unreasonable and unwarranted searches. That was the entire point of the FISA court in the first place! And with reports of thousands of American citizens being spied on without even the minimal oversight of a secret rubber-stamp court, the possibility of a 4th amendment violation is extremely real.

So real, in fact, that on December 21, 2005, US District Judge James Robertson of the FISA court resigned his position in protest. And, on the same day, the Washington Post discovered that some purely domestic communications were intercepted as part of the program, “despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil.” While it might be easy to parrot back Bush’s claim of everything he did being legitimate, the reality of the situation is undeniably less black and white.

Bush supporters cite Clinton Deputy Attorney General Jamie Gorelick as saying, in 1994, that “The Department of Justice believes, and the case law supports that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.” But this is purposefully misleading. In 1994, physical searches weren’t a part of FISA, so Gorelick was quite right in his assertion. In 1995, when Clinton expanded FISA’s authority to include them, they bore the same burden as wiretaps do today: the FISA court must authorize the president’s decision.

Clinton supported and performed warrantless wiretaps as well. There’s so much disinformation being spread around right now, it’s hard to get to the bottom of this. But as far as any honest research indicates, Clinton never bypassed FISA, nor argued for his right to bypass FISA. Even if he did, it has no bearing on what is currently happening.

The issue isn’t the wiretaps – it’s the leaking of the program to the media. This is laughable. Firstly, not only is leaking classified information with the intent of exposing a crime protected under whistleblowing laws, but knowingly keeping information classified to cover up government wrongdoing is a crime in and of itself. This “leak” is more “Pentagon Papers” than “Valerie Plame.” Furthermore, the New York Times actually had this story as early as 2003, but sat on it for over a year at the administration’s request – which means the administration knew about the leak for over a year. If they were honestly interested in “protecting national security in a time of war,” they would have acted then. Yet only in the past few weeks has Bush ordered an investigation.

The issue is even broader than that. Essentially, we’re in a situation where the president has admittedly violated the 4th amendment. Whether or not this is a dereliction of duty is perhaps another argument, but the burden of proof of necessity here is extremely high. We’re not at war, so executive wartime powers are irrelevant. Are violations of the Constitution okay so long as they’re done in the interest of national security? As you reflect on the answer to that question, consider the thoughts of two founding fathers. Benjamin Franklin is attributed as saying “those who would sacrifice essential liberty for temporary safety deserve neither.” And Patrick Henry once closed a 1775 speech with a phrase that’s become the bedrock of our republic: “give me liberty or give me death!”

Maybe the issue isn’t so complicated after all. Where do your allegiances lie – to the country, or to the administration?

If you’re interested in learning more, there is a good Bush/NSA Wiretap Myths vs. Realities article availiable at TheLeftCoaster.com. Search for “King George Gate”.