If You’re Secretly Intercepting Americans’ Communications Without A Warrant, We Want to Know Why
The Founding Fathers had firsthand experience with unchecked power. In July of 1776, they declared, “King George, we’ve had enough!”:
But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. –Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
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He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries…. He has affected to render the Military independent of and superior to the Civil power…. For depriving us in many cases, of the benefits of Trial by Jury…. For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments…. For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
Having secured their independence, early Americans set out to create a government incapable of the inflicting the abuses they endured under the king’s rule. They created an elaborate system of checks and balances to ensure that no one branch of government could amass excessive power, and they specifically codified the right of citizens to be free from unchecked surveillance by their government:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
We’ve come a long way since 1789. Our current President apparently believes that he has the power to suspend the Constitution whenever he deems it appropriate. This unfettered power, he argues, is necessary to wage the war on terror.
Bush has recently described the warrantless operation as “terrorist surveillance” and summed it up by declaring that “if you’re talking to a member of al Qaeda, we want to know why.” But officials conversant with the program said a far more common question for eavesdroppers is whether, not why, a terrorist plotter is on either end of the call. The answer, they said, is usually no.
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The Bush administration refuses to say — in public or in closed session of Congress — how many Americans in the past four years have had their conversations recorded or their e-mails read by intelligence analysts without court authority. Two knowledgeable sources placed that number in the thousands; one of them, more specific, said about 5,000.
The program has touched many more Americans than that. Surveillance takes place in several stages, officials said, the earliest by machine. Computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, e-mails and telephone calls into and out of the United States before selecting the ones for scrutiny by human eyes and ears.
The problem with the administration’s argument is that the government had at its disposal the tools necessary to capture suspected terrorists long before 9/11. Although several of the 9/11 hijackers were known terrorists, they entered this country and booked airline tickets using their real names. The FBI could have apprehended them using little more than its terrorist watch list and a phone book.
Moreover, the President has always had the power to intercept communications of suspected foreign terrorists. The Foreign Intelligence Surveillance Act of 1978 authorizes foreign intelligence surveillance for a period of up to one year without a court order. Consistent with the Fourth Amendment, the Act permits warrantless surveillance only if the target of the eavesdropping is “a foreign power or an agent of a foreign power” and “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party….” If surveillance will likely involve communication to which a U.S. citizen is a party, the Act permits surveillance only if the government applies for a warrant within 72 hours after commencing its eavesdropping. (FISA originally permitted a 24-hour period in which to seek a retroactive warrant; the Patriot Act increased the time period to 72 hours).
That sounds reasonable. Why not conduct surveillance of foreign terrorists under FISA? Maybe the problem is that those pesky FISA court judges routinely rejected the government’s warrant applications. Well, not exactly. Since its inception, the FISA court has approved more than 18,700 warrant applications and rejected only four. Okay, so that’s not it either.
The United States Constitution presents no barrier to U.S. agents wishing to spy on foreign nationals, and the Fourth Amendment permits surveillance of U.S. citizens provided the government can show probable cause to believe that the suspect is engaged in unlawful activity. Why, then, would the President desire such a program? Do you honestly believe that the thousands of Americans whose conversations were intercepted by the NSA were “talking to a member of al Qaeda?”
A more likely explanation is that the administration opted to circumvent FISA because judges refused to grant it unfettered authority to spy on Americans.
The 11-judge court that authorizes FISA wiretaps has approved at least 18,740 applications for electronic surveillance or physical searches from five presidential administrations since 1979.
The judges modified only two search warrant orders out of the 13,102 applications that were approved over the first 22 years of the court’s operation. In 20 of the first 21 annual reports on the court’s activities up to 1999, the Justice Department told Congress that “no orders were entered (by the FISA court) which modified or denied the requested authority” submitted by the government.
But since 2001, the judges have modified 179 of the 5,645 requests for court-ordered surveillance by the Bush administration. A total of 173 of those court-ordered “substantive modifications” took place in 2003 and 2004 — the most recent years for which public records are available.
The judges also rejected or deferred at least six requests for warrants during those two years — the first outright rejection in the court’s history.
So what he really meant to say is “Unlike previous presidents, I want complete authority to spy on U.S. citizens without probable cause and without any judicial oversight whatsoever. If you won’t give me that authority, then I’ll just do it anyway.”
Judicial oversight of executive power prevents tyranny. We made it through two world wars and the cold war with the Fourth Amendment intact, and we’re better for it. Don’t take my word for it. Ask the Founding Fathers. You don’t need to conduct a seance; just read their words. I’ll bet King George would have hated those damned judges too.
UPDATE: Glenn Greenwald’s assessment of Gonzales’ opening remarks at today’s hearing is right on the mark:
Of course Gonzales begins his Opening Statement by quoting Osama bin Laden and Zawahri. We used to quote Madison, Jefferson and Lincoln to decide what the principles of our Government are going to be. Now we quote Al Qaeda.
UPDATE II: As usual, digby is right on the mark:
It is indisputable that the administration has engaged in surveillance of political groups. We know this. It has been verified. We also know that they believe that political dissent gives aid and comfort to the enemy. The president says so himself.
Therefore, it is entirely reasonable to suspect that this administration would use this illegal surveillance program for purposes other than that to which they have admitted, particularly since they consider political dissent to be bordering on treason….
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Anybody who even dreams that these guys are not using all their government power to spy on political enemies is being willfully naive. It is what they do. It is the essence of their political style….
One Response to “If You’re Secretly Intercepting Americans’ Communications Without A Warrant, We Want to Know Why”
yeah, funny how it really works, as opposed to how he wants it to work, however, if you’ll notice, he really doesn’t care that much for the constitution.
Comment by refuge on February 6, 2006 at 6:37 pm.