Recently, the Bush administration has received a lot of criticism concerning the Terrorist Surveillance Program (TSP). The TSP enables the National Security Agency (NSA) to eavesdrop on international communications without a warrant [1]. This means the NSA is potentially monitoring communications where one party is a legal resident of the United States. However, the administration insists that warrants are still required for intercepting purely domestic communications. All of this begs the question, what is an appropriate policy when it comes to the electronic surveillance of Americans?
Let us begin with the basics. The fourth amendment of the United States constitution states the following: "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" [2]. However, it is not immediately clear that the fourth amendment applies in the case of electronic surveillance. When law enforcement records a phone call does this even qualify as a search or seizure? In 1967 the supreme court held that intercepting these types of communication does in fact qualify as a search and seizure [3]. Furthermore, the court ruled that such surveillance techniques are to be deemed unreasonable when there is a justifiable expectation of privacy by those involved in the communication. Thus, purely domestic communications cannot be intercepted unless the government has probable cause, and a search warrant.
What about communications that involve foreign nationals? Before the TSP was enacted the government had to abide by the Foreign Intelligence Surveillance Act (FISA). FISA requires that a warrant be obtained in order to eavesdrop on conversations when any party involved is a resident of the United States [4]. However, if communications only involve agents of foreign governments (this includes terrorists), no warrant is necessary. The Bush administration has criticized FISA in a variety of ways. First, in times of great urgency applying for a warrant may be too time consuming. By the time the process is complete it may be too late. Second, the FISA law lacks the ability to quickly obtain warrants for large numbers of people. It is unclear whether or not these complaints are even accurate. For example, critics of the administration have pointed out that obtaining a warrant from the FISA court requires a lower standard of proof than what would be needed to obtain a criminal warrant, and can be done in a matter of hours [1].
I believe that FISA is the correct approach when conducting surveillance of Americans for a variety of reasons. The constitution seems pretty clear on this issue: If you want to spy on Americans you have to have a reason, and you have to obtain a warrant. Furthermore, we have seen abuses of electronic surveillance by the executive branch in the past. FISA was enacted as a response to the Watergate scandal where Richard Nixon used the capabilities of our intelligence agencies to spy on his political opponents [5]. Oversight by the courts is critical to ensuring that such violations do not occur. The TSP violates our system of checks and balances by sidestepping the courts.
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5 comments:
I totally agree! How can they get away with that?
So here is what I can gather from this whole argument. First of all, it does seem a little shady. But, there is a question of constitutionality that I believe is still left unanswered. The constitution is a little like the Bible-old, and it doesn't necessarily cover everything that the present period in history requires. The constitution was obviously written well before phones so such a thing a wire taping was obviously not considered. Also, from a historical perspective it would be irresponsible to assume that the authors of the constitution would have stipulated against such a thing because you are basically talking historical fiction at that point. So what does the constitution say?
What isn't explicitly mentioned in the constitution itself is left up to the supreme court to decide on whether an issue is within the bounds of the constitution. The only problem with this is that regardless of what the supreme court rules on an issue of constitutionality, it isn't changing the constitution or setting the decision in any kind of permanent ruling at all. Future judges are allowed to make a completely different ruling in the future where a similar case to be presented to them. I am carrying on a little here, but what I am getting at is that to me there is not necessarily a constitutional violation going on with the wire taping and a supreme court ruling from 1967 still doesn't make it so. So, if we are worried about that alone, then we need to start looking at an amendment because until there is something in the constitution worded exactly in regards to wire taping, then we can't rule it unconstitutional quite yet.
Now, what about the legality of the wire taping? Though the supreme courts decision from 1967 does completely settle the constitutional debate in my mind, it does however establish a standard. Obviously, as you have cited, there is an espionage law that is explicit about the conduct of wire taping and it is this that I think the government is stepping over a little bit (if not stepping on). Going back to the strict literal interpretation of the constitution-just because the constitutionality of wire taping is not explicitly defined that doesn't make it unconstitutional to make a law outlining a stronger definition where wire taping can be used. This has obviously been done and it is amazing to me that congress actually voted to break that law. This law may be an international agreement, but if we signed something saying that we would abide by it and now we aren't, then we are in the wrong and what we are doing is wrong.
I believe the final question remaining in this discussion is whether or not we need to be wire taping these international calls. I would first like to know how helpful this has been, if it has been misused. I suppose if these wiretaps have lead to the avoidance of complete destruction at the dialing fingers of some talkative terrorists, then by all means-tap the phones! I just don't know how "safe" this makes us. On a personal note, this just doesn't seem to affect me much. I don't even make long distance calls usually let alone to foreign countries. (though I have made a few in the past while this act was in effect and I still didn't really feel weird about it) I do think that what they are doing is illegal, but if it is really necessary and it is helping then we need to do something to make it a little more legitimate.
Adam, I think you make some outstanding points. The distinction between constitutionality and legality is well taken. However, I do have a question for you. Given that the 1967 supreme court ruling has not been overturned, are we not bound to the court's interpretation of the fourth amendment?
The next thing I would like to point out is that the TSP originally came into existence due to an executive order by President Bush. Congress did not vote on this issue until the Protect America Act of 2007. Now, congressional intelligence committees were briefed on the TSP, but this is by no means equivalent to passing legislation. So from late 2001 to early 2007 the legislative and judicial branches had no say in the matter.
The Protect America Act essentially made the necessary changes to the FISA law that would make the TSP legal. So clearly the TSP is legal, but the question is whether or not it ought to be. The only way I know how to answer this question is to evoke the constitution, and the interpretation of it by the supreme court.
Regarding your question as to how useful the TSP has been, of course we cannot really know because the administration has not divulged any details of the program. I agree that our intelligence agencies are paramount in protecting the American people, but I believe that surveillance can be conducted in such a manner that keeps America safe and free.
The final point I would like to make is that I believe that we do have reason to be skeptical of the Bush administration on this issue. Some NSA officials have admitted that purely domestic communications have been intercepted. Also, one of the controversial pieces of the Protect America Act provides retroactive immunity of the telecommunications companies that have participated in the TSP. If passed, this would mean that Americans that feel their civil liberties have been violated could not sue these companies for allowing the government to spy on them. This raises so many red flags in my opinion. If the administration feels that the TSP is constitutional, why not let these cases go to trial and be defeated. Bush has given a number of arguments for why the legal immunity is necessary. First, the companies may not help us out of fear of being sued. Well, if warrants were being applied for this would not be an issue. That is the whole point of a warrant. The telecoms would have to help because of the court order. Congressional Democrats have also proposed that the government pay for any loses the telecoms might incur. Bush has stated that he would still threaten to veto the bill. Second, Bush is fearful that trials might provide the enemy with details of how we conduct surveillance. Democrats have responded by proposing closed trials that would prevent this. Bush still threatens to veto. So why is Bush so insistent on providing the telecomunications companies with retroactive legal immunity. Well, maybe its because he knows that the TSP is unconstitutional and one of the cases might make it to the supreme court. A more cynical reason might be that Ed Gillespie is the acting Consular to the President. Can you guess what his old job was? He used to be a lobbyist for telecommunication companies.
True, the question of constitutionality and it not being settled is purely semantic simply because the words "wire taping" aren't contained within the constitution. The supreme court ruling as I mentioned, does set a standard though. The trouble with supreme court decisions though is that they mean nothing if laws are not passed as a result to uphold those decisions. The trouble with this particular subject is that laws were passed to uphold the decision-the FISA law. So I think the points you are raising are right. For six years this legislation was side-stepped and it is just now coming down to what I believe is going to have to be a reassertion of the original 1967 decision. Or we could just hold our breath and wait for that fucking cowboys term to be up. Do you have any idea how much gas is going to cost by the end of the summer!? That's a whole other issue though, (a next blog perhaps...?)I could go on all night on that. I still havn't answered my favorite question that you raised in your reply-whether or not it ought to be legal? I don't really have an answer to that. I certainly don't think that we have the legislation in place at the moment, but I suppose it could be conducted responsibly. I guess that's where the democrats bill that Bush is going to veto comes in. I really hate that guy you know.
Cool, I think we are in agreement. Because of this discussion I have come to a realization. Perhaps the Democrats are becoming better politicians. Think about it. If they vote against the Protect America Act they will be pegged as being anti-American. So by making the TSP legal they give Bush what he wants. However, by not caving to Bush when it comes to legal immunity for the telecommunications companies there are two outcomes: Bush vetoes the bill, thereby valuing these companies over the safety of the American people, or he signs it into law, allowing the cases to go to trial. So either Bush looks really bad, or the cases go to trial, and the TSP is eventually declared unconstitutional. Pretty clever. Do you think I'm giving the Democrats too much credit?
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