Unwarranted Eavesdropping

I've given a great deal of thought over the last couple of weeks to the issue of electronic eavesdropping on "U.S. persons" by the U.S. government. Alleged President Bush authorized the National Security Agency to listen in on certain telephone calls and other electronic communications to or from the United States with known or suspected terrorists, completely without judicial oversight of any kind.

The FISA law, the Foreign Intelligence Surveillance Act, permits the President to order such wiretaps with only one restriction: he must get the approval of a judge within 72 hours after beginning the eavesdropping. The court proceedings for issuing those warrants are classified and immune from public scrutiny — a departure from our national tradition of openness in the administration of justice, necessary to protect national security. However, the fact that a judge must still authorize (at least retroactively) all surveillance of U.S. persons, provides a bulwark against the obvious temptation to abuse and overreach that authority.

Alleged President Bush and his administration claim that the wiretapping is permitted by a variety of legal theories, each of which is transparently false.

1. Article II, Section 2, of the U.S. Constitution makes the President the Commander in Chief of the Armed Forces, giving him the authority to order them to do anything necessary in the defense of our country. As the Supreme Court pointed out to President Truman, the President is not the Commander in Chief of the entire nation, only of the armed forces, and the NSA is not part of the armed forces. Furthermore, Article I, Section 8, explicitly gives Congress the power to regulate the conduct of members of the armed forces, thus constraining the President's authority. Beyond that, the vague grant of authority in Article II cannot trump the explicit denial of authority in the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."
   
   
2. The Authorization to Use Military Force (AUMF) passed by Congress immediately after 2001-09-11 gives the President the authority to take "all necessary measures" to defend the United States against terrorism. First of all, the Congress considered and explicitly rejected language in the AUMF that would have given the President unbridled authority within the United States. Second, the Congress cannot give the President permission to violate an explicit Constitutional prohibition.
   
   
3. The USA PATRIOT Act somehow authorized the President to do whatever he wants as long as he pretends it's necessary to protect us against TERRORISM. Nowhere does the Patriot Act give the President the authority to conduct domestic wiretaps without court approval.
   

Should the federal government be listening in on the telephone conversations, e-mails, and other communications of people suspected of connection to al Qaeda and other terrorist groups? ABSOLUTELY!

HOWEVER, that eavesdropping MUST be subject to CONTINUOUS and VIGOROUS oversight by the judicial branch of our government. Anything less is unacceptable in a Constitutional democracy, no matter how extreme the external threat.

The alleged President and his apologists often point to the lack of a terrorist attack on U.S. soil since 2001-09-11 as "proof" that the alleged President's policies are in fact protecting us. He might as well argue that the Patriot Act is protecting us against little green men from Alpha Centauri, since we also haven't been attacked by them [that we know of] on Bush's watch. The last previous al Qaeda attack on American soil was the attempted bombing of the World Trade Center in 1993. Al Qaeda has attacked American forces and American interests abroad several times since 2001. Undoubtedly, the administration has blocked some terrorist attacks, probably including some on our own soil, but the fact that some competent officials are doing their job does not excuse the fact that incompetent officials at the top are failing to do their job and failing to abide by their oath to uphold, protect, and defend the Constitution of the United States.

The use of unaccountable, warrantless searches does not make me feel any safer; indeed, it makes me feel less safe, because it suggests that the administration is not only overreaching its legal authority, but also more than likely doing so in a less than competent manner. If the alleged President does not immediately terminate this unlawful program — and perhaps even if he does — then he must be impeached and removed from office.