Tuesday, February 7, 2006

A Constitutionalist's View of Wire Tapping By Bush

The issue of wire tapping and the secret program to do so authorized by President Bush is here to stay. It will probably remain on the radar until it has been decided by the courts, perhaps all the way to the Supreme Court. There are only two possible outcomes, President Bush is correct that he has the authority or he is wrong, in which case, the penalty could be impeachment. I hope we don't get to that point because two impeached presidents in a row is not going to look favorably on American citizens.

Let me start with the Constitution first. President Bush hasn't to my knowledge specified exactly where in the Constitution he says he is given the powers to wire tap, but conservatives like Rush Limbaugh point to Article II. Under this Article, the drafters of our Constitution lay out the powers of the President. It consists of four sections with the Section II dealing with his powers during times of war. That Section states in its entirety:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

I think we can agree that one would be hard pressed to find anything close to resembling the power to wire tap without warrants. So one must look further into the Constitution, specifically the Fourth Amendment for further clarification. The fourth Amendment in its entirety says:

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.

In my opinion, I think this states quite clearly that the President would need a warrant to search our effects. Yes it doesn't state wire tapping specifically but it wasn't even a blip on the radar screen back then. But for sake of argument, let us say that even the fourth Amendment doesn't apply to the wire tapping issue. Then we must fall back to the tenth Amendment where in its entirety is says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

So the issue of wire tapping and warrants is now our decision and in 1978, we (i.e. congress) passed the Foreign Intelligence Surveillance Act or FISA. In Subchapter 1, 1801, section A of the FISA law, it states in its entirety:

1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title;

Now you can see that section B deals specifically says ANY communication in which a UNITED STATES PERSON is party to, is not available for wiretapping. It also goes further in Subchapter 1, 1805, section a.3.A dealing with targets electronic surveillance can be issue for by saying:

the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States

So to me, wiretapping a U.S. citizen or even a wiretap involving a U.S. citizen is not acceptable. But by the time we get the warrant to wiretap, the phone conversation will be over says President Bush, the Attorney General and even my own Senator, Chuck Grassley. Well the FISA laws deals with that specifically too. It says:

Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;
he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest.

This clearly gives latitude for President Bush to authorize wiretaps up to 72 hours at which point he needs a warrant. I believe this is absolutely necessary to protect our country from terrorists. I find if ironic that during President Bush's 2004 campaign, he made the following statement about wiretaps and warrants on April 20th in Buffalo, New York:

Now, by the way, anytime you hear the United States government talking about wire tap, it requires-a wire tap 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.

To borrow his own terminology used against Senator Kerry, Bush has flip flopped on this issue. Even his own party is turning against him. The following four Republicans had this to say:

Sen. Lindsey Graham (R-SC) “The FISA Act was-created a court set up by the chief justice of the United States to allow a rapid response to requests for surveillance activity in the war on terror. I don’t know of any legal basis to go around that.”
Sen. Arlen Specter (R-PA) "There is no doubt that this is inappropriate.”
Sen. John McCain (R-AZ) “WALLACE: But you do not believe that currently he has the legal authority to engage in these warrant-less wiretaps. MCCAIN: You know, I don’t think so…”
Sen. Sam Brownback (R-KS) “I am troubled by what the basis for the grounds that the administration says that they did these on, the legal basis…”

In conclusion, President Bush is in very hot water and from what I can determine from reading all the documents referenced by ultra-conservatives like Rush Limbaugh, and has no legal authority from FISA or the Constitution to permit wire taps involving a U.S. citizen even if the call originated from an overseas country unless he gets a warrant within 72 hours. President Bush should publicly step back from wire tapping and issue an apology admitting he was wrong. If he doesn't, then he needs to be held accountable and impeachment is sadly one of the available tools to do this. I hope it doesn't come down to this because I would rather have Bush making the decisions over Cheney.

Edited Addendum:
Records showed that the court had rejected none of more than 11,000 requests for warrants from 1979 through 2001. Since then, it has rejected just four of more than 5,200 applications. That means only .02% have ever been denied. Since it is basically an automatic rubberstamp and is retroactive for up to three days, what is President Bush's reasoning for not doing it?

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