NSA Wiretapping Revisted

It has been over a month now since the Bush Administration’s wiretapping of domestic–to–international communications without obtaining warrants has been revealed. Since then, the administration has elaborated on its defense of the program.

US Attorney General Roberto Gonzales gave a speech defending the program as “necessary and lawful” at the Georgetown University Law Center on January 24th. He started his defense by arguing that the constant surveillance of Al Qaeda is necessary in order to prevent future terrorist attacks, and said that the majority of public opinion supported this idea. This, of course, is beside the point. Gonzales attempted to reframe the debate as being for or against surveillance of terrorist communications, which, naturally, demonizes his opponents, who argue nothing of the sort. The real issue is the legality of, and the lack of accountability surrounding, the way the surveillance is done.

Gonzales went on to justify the legality of the wiretapping program as being permitted by the 2001 “Authorization for Use of Military Force.” This resolution gave the President the ability to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” It remains the cornerstone of Gonzales’ defense. But for it to be applicable, spying agencies tapping phone and email communications would have to be considered “military force,” and each person being spied on would have to be provably related to the 9/11 attacks. Additionally, it’s very doubtful that Congress thought it was repealing laws on spying when authorizing a military attack on the Taliban. According to a February 7th article in the New York Times, in instances where two laws are potentially conflicting, the more specific law usually takes authority. In this case, that would be FISA, which specifically mentions wiretapping in these situations. The 2001 authorization of force does not mention acts like surveillance, especially inside the country.

He went on to defend the unwarranted wiretapping as a wartime precedent, by pointing out how George Washington intercepted mail, and presidents ordered the interception of transcontinental cable messages during World Wars I and II. However, Gonzales did not mention that these events all preceded the enacting of the 1978 Foreign Intelligence Surveillance Act, which specifically regulates these activities. Making this point even more ludicrous, the US did not even have its Constitution when George Washington led the Revolutionary War. Additionally, these wars were of a completely different nature than our current War on Terrorism, in that they each had an explicitly defined end. In a never-ending War on an Idea, the Bush administration keeps this expansion of its power indefinitely.

The Bush domestic spying program is especially frightening due to its lack of checks and balances. The President reviews it every 45 days and, since he feels he is acting to secure America, is held accountable by no one. Under FISA, warrants are required to be issued by a secret court (to keep the subjects of the spying from knowing) before a spying agency can monitor communications between national and international suspects.

FISA currently allows spying agencies to apply for warrants in these situations up to three days after they’ve started. On numerous occasions, Bush has defended his actions by saying that obtaining FISA warrants, even after the wiretapping was in place, would be an unacceptable delay for the spying agencies. If this is the case, it is the responsibility of the President and the executive branch to work with Congress to have FISA modified or replaced. If a law is overly restrictive or inadequate, it does not give anyone, even the President, the right to ignore it. However, I can’t understand how a multi-billion dollar agency couldn’t afford to hire someone to file for these warrants, and I can’t imagine a program where filing three days after the fact is still too troublesome. The only logical conclusion is that people are being spied on in situations where there is not the legally required probable cause.

Imagine how things could have been: Bush tells America that in particular emergency circumstances, US spying agencies need a faster way to get warrants in order to gain valuable insight into terrorist activities. He says that FISA is an unacceptable burden on necessary operations, and strongly pressures Congress to amend FISA to make warrant applications faster. Had Bush done this, he could get the law changed without too much trouble.

Recent polls of public opinion have varied greatly depending on the wording of the question, but a recent Wall Street Journal found that while 51% of people “supported Bush’s approach” on wiretaps without a court order, 53% of people responded that the administration “should be required to get a court order before conducting these wiretaps.” I leave it up to the reader to draw conclusions on this.

Lastly, it’s important to note Bush’s clearly worded and completely deceptive attempt to deny the existance of this policy. In a 2004 speech regarding the USA-PATRIOT act, Bush said quite clearly “…any time you hear the United States government talking about wiretaps, it requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.” This was three years into Bush’s program of warrantless wiretaps, which he said he reviews every 45 days. This glaring contradiction can not be defended in any way I can conceive of.

On February 6th, Gonzales spoke at a hearing with the Senate Judiciary Committee in regards to the program. After eight Democratic votes in favor of swearing him in and ten Republican votes against, his answers consisted mainly of reiterating what he said at his previous Georgetown speech, and were met with reactions of doubt by senators on both sides. The committee’s chairman, Senator Arlen Specter said that Gonzales’ justification for the program’s legality “defies logic and plain English.” South Carolina Senator Lindsay Graham told Gonzales that “I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche.” A closed hearing is planned this Thursday where all the details of the program will be discussed by the Senate Intelligence Committee.