Warrantless Wiretapping Threatens Republic

On April 20th, 2004 , President Bush delivered a speech in Buffalo , New York , where, in response to concerns over the state of civil liberties, he stated the following: 'Now, by the way, any time you hear the United States government talking about a wiretap, it requires--a wiretap requires a court order. Nothing has changed. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.' So when The New York Times revealed back in December that the Bush administration had been engaging in the warrantless wiretapping of American citizens since 2002, catching Bush in another blatant lie to the American people, the Republican response was understandably fast and furious. President Bush himself quickly denounced the leak as a 'shameful act' that jeopardized national security and immediately launched an investigation to find the leakers--something he didn't do when his own staff leaked the name of covert CIA agent Valerie Plame--while his P.R. department worked overtime, rebranding the spying operation as a 'terrorist surveillance program.' In a January 20th speech before the Republican National Committee, chief Bush political advisor Karl Rove exemplified the White House spin, casting it as a partisan matter and clouding the debate by declaring that President Bush simply 'believes if Al Qaeda is calling somebody in America, it is in our national security interest to know who they're calling and why. Some important Democrats clearly disagree.' Of course, as Rove surely knew, the issue critics take with the warrantless wiretapping program isn't that it taps the conversations of Al Qaeda--any sane person would support that--but that it clearly violates not only the Foreign Intelligence Surveillance Act (FISA), which provides a simple judicial process for obtaining warrants in just such cases, and also contravenes the Fourth Amendment's requirement that a warrant be obtained demonstrating 'probable cause' if a citizen is to be searched or spied upon.

In its defense, the Bush administration has claimed that the FISA law is somehow too antiquated and limiting in a post-9/11 world. However, this assertion is ridiculous on its face, as a look at the actual FISA law and its record in practice will reveal. Passed in 1978 in response to the infamous abuses perpetrated by the government, spying on and infiltrating domestic civil rights and antiwar groups--something that has once again become rampant--the FISA law created a secret court in which to hear cases involving electronic surveillance of those persons suspected of engaging in espionage or international terrorism. In 2001, the FISA law was expanded by the USA PATRIOT act to include a broader definition of terrorism meant to make it easier to pursue non-governmental terrorist organizations such as al Qaeda, as requested by the Bush administration. Since its conception, the court has heard over 18,000 requests for warrants, rejecting only a handful, for an astounding approval rate of over 99 percent. In addition, the court even allows federal agencies to seek a warrant retroactively, up to 72 hours after surveillance has begun.

Simply put, there is no legitimate reason why any president would need to circumvent judicial review and the rights enshrined in our Constitution to listen in on the conversations of terrorist suspects. The FISA court is essentially a judicial rubber-stamp, and has been more than willing to acquiesce to government demands for a warrant, particularly in the wake of 9/11. Furthermore, if FISA was indeed inadequate, as Bush has argued, then he should have followed his Constitutional duty to enforce the laws of the land while seeking to amend it through Congress--which had already been done in 2001, just months before he secretly began his warrantless wiretapping program. By claiming the unilateral right as commander-in-chief to disregard our nation's laws and Constitution in the name of 'national security,' Bush is placing himself above the law. By refusing to abide by the FISA law, Bush is eliminating any sort of review of those Americans he chooses to wiretap; we are told to simply trust that only the 'bad guys' are being monitored, and that Bush won't abuse this power. His refusal to allow for the most basic element of judicial review and to follow existing law, which already allows for the wiretapping of terrorist suspects, leads to the inevitable conclusion that it is not terrorists he is wiretapping, but perhaps domestic political opponents. Regardless, it lays a dangerous precedent by rejecting the balance of powers, while laying the groundwork for future presidents to continue the destruction of our country's republican institutions.

And if warrantless electronic surveillance wasn't disturbing enough, U.S. News & World Report is reporting that the Bush administration has argued for, and conducted, warrantless physical searches. The article recounts the story of one defense attorney for an Oregon man accused of illegally sending charitable contributions overseas, who claims that his offices were broken into on several occasions. If these allegations are true--Attorney General Alberto Gonzales has already claimed that the administration has the inherent power to do so--then we are just another step closer toward tyranny.

Throughout the debate over the warrantless wiretaps, the administration's defense has essentially rested on just two words: trust us. Yet in the wake of their innumerable mistruths and deceptions on Iraq , and their gross negligence and incompetence in response to Hurricane Katrina, trust is the very last thing that this administration deserves. Unrepentantly breaking federal law is grounds for impeachment, and Senator Russ Feingold's (D-WI) move to censure President Bush is a welcome step in drawing attention to the actions of this lawless administration. It is now up to the citizens to hold their public servants accountable to the Constitution and to enforce the idea that in America , no man is above the law.

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Charles Davis's picture
Columns on STR: 8

Charles Davis is a journalist based in Washington, DC. More of his work may be found at his website.