Warrantless Wiretapping and the War on Terror

I'm puzzled by the Bush administration's secret program to wiretap phone calls that occur at least partially within the United States, without obtaining a search warrant.

Here's how I understand the program and the administration's position.
The federal government needs to be able to surveil suspected terrorists. This surveillance includes wiretaps of telephone conversations. The federal government needs to be able to do this secretly so that terrorists are not aware that their calls are being monitored. It needs to act quickly at times, without the delay of first going to a court to get permission. Additionally, the executive branch doesn't need a search warrant because congress has authorized it to use force against terrorists. Not only that, but even without congressional approval, this is already part of the Commander-in-Chief's constitutional wartime powers. Not only that, but the program was discussed with members of congress numerous times and they never objected. Alberto Gonzales, then a White House counsel, approved the legality of the program at its outset. The person or persons that leaked the existence of this program to the press has jeopardized American security by tipping off the terrorists that their calls are being secretly monitored.

Here are a few of my questions
1. The administration asserts that post-9/11 authorizations of force supercede the FISA legislation.
However, the FISA legislation explicitly states that it is the sole law governing Foreign Intelligence Surveillance. The FISA legislation contains very specific details of the requirements for the Attorney General to certify any domestic electronic surveillance and transmit this certification under seal to the court established for this purpose.

"The Attorney General shall immediately transmit under seal to the court established under section 1803 (a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence"

None of the post-9/11 legislation addresses any expansion of powers for domestic electronic surveillance nor do they mention any changes that would supercede FISA requirements or procedures.

2. The administration asserts that obtaining a warrant would have impeded them because of the need to react quickly to intelligence.
However, FISA does not require the executive branch to delay wiretaps or other electronic eavesdropping prior to submitting their certification to the court. They are authorized to commence the wiretapping immediately and then have three additional days before they are required to submit any certification to the court.

3. Some members of the administration assert that the terrorist attacks of 9/11 have changed the landscape and rendered FISA obsolete.
However, the administration made no effort to have this legislation modified, replaced, voided, or otherwise updated to address their concerns. Instead, they chose to simply ignore the laws that are in place.

If the Bush administration truly believed that the FISA laws were obolete, why didn't it openly challenge these laws or ask Congress to update them?

4. The administration asserts that they have consulted with members of congress on numerous occasions and encountered no objections to the program.
However, they have never provided complete details of which members of congress were consulted, nor have they revealed the nature of these consultations. Republican Senator Arlen Specter, a Republican party leader and Senate Judiciary Committee Chairman, appears to have never been consulted. He put the Bush administration on notice that his panel would hold hearings.

In a nation governed by the rule of law, should the executive branch be able to secretly override legislation simply by consulting a hand-picked group of Senators or Representatives? Does this apply only to the current administration in the current circumstances, or do we want our executive branch to always have the abiltiy to secretly disregard legislation whenever they can find a handful of congressmen that will go along with them?

5. The administration asserts that making this secret program public has jeopardized our national security.
I'm sure the terrorists always knew that they could and would be wiretapped if they were suspected, they just thought some extra paperwork would be filed with the courts afterwards to certify the necessity of the wiretap. How does it help them to find out that the necessary post-wiretap paperwork was never filed?

6. If, as the administration asserts, the executive branch can secretly bypass the necessity for search warrants issued by the judicial branch when it deems it necessary, what determines when a search warrant is "required"?
Is the determination of this requirement solely at the discretion of the executive branch? If so, what does the constitutional requirement for a judicially issued search warrant mean? Why would one ever be "required" (i.e. not at the discretion of the executive branch)? Are the FISA laws passed by the legislative branch meaningless? Is the fourth amendment meaningless? Where are the exceptions to a search warrant requirement written into the constitution? Can the executive branch simply search until they find someone in their administration that will approve the action? According to recent news reports. this may have been what happened:

"... White House officials attempted to get approval for the secret wiretapping program after a top Justice Department official rejected parts of it in 2004.

"James Comey, the acting attorney general, would not approve parts of the program in March 2004 because he had concerns about its legality and supervision.

"Two presidential aides asked for help from then-Attorney Gen. John Ashcroft, who was recovering in a Washington hospital after being treated for pancreatitis. The report shows that Ashcroft also had concerns. It is unknown whether the aides, White House Chief of Staff Andy Card and then-White House counsel Alberto Gonzales, persuaded him to agree or if the White House bypassed his approval."

National Security and Leaking Classified Information
Much has been made of the possible damage done to national security by leaking news of the Bush Administration's classified warrantless wiretapping program. I don't believe this program should ever have been classified in the first place. Details of government activities should only be classified for one reason - security. Classification should not be used to hide politically embarrassing or illegal activities from the American people.

How has this new information damaged our security? Both the terrorists and most Americans always knew full well that suspected terrorists could and would be watched and wiretapped. This fact was never secret. Most of us just assumed that the administration would perform the wiretaps legally. It is only the potentially illegal circumvention of oversight by the courts that was kept hidden from the American public, the courts, and the overwhelming majority of our elected representatives. This is an egregious misuse of the ability to classify information. The American People have a right to know when their government has made such a far-reaching decision as this.

Certainly, information about individual wiretaps should remain classified. But, the fact that the adminsistration is ignoring the FISA laws, should not be kept hidden by classifying the program as secret .

Surveillance of American Citizens and the Oversight Role in Government
I've yet to hear anyone of any political stripe question the need to wiretap suspected terrorists. No political leader in this country, Democrat or Republican, has questioned the right of the administration to wiretap suspected terrorists. In fact, it is this very obvious need that lead the congress to enact very specific laws enabling the investigation of Americans suspected of espionage or sabotage.

This body of laws is known as the Foreign Intelligence Surveillance Act and is bounded by the fourth amendment requirement for judicial oversight. It is the law of the land. Like any law, it can be modified by an act of the legislature. It cannot be legally modified by secret executive fiat.

It appears to me that the Bush administration did not have any valid national security reasons for keeping their program secret. They hid it to prevent us, the American electorate, from knowing that they were blatantly ignoring the FISA laws.

Why Skirt the Law?
Since all government agencies (federal, state, and local) already have the established ability to wiretap any American citizen by obtaining a court order showing probable cause, why did the Bush administration feel compelled to ignore these provisions? The need to act quickly has been addressed by the current FISA laws. The need to protect national security and secrecy is also protected by this process (unless we assume that terrorists have been placed on these emergency courts and will notify Al Qaeda with details of the ongoing surveillance).

So I have to ask, what exactly was gained by ignoring the role of the courts that is so firmly established by the fourth amendment, validated by voluminous court precedents, and laid out in excruciating detail in existing laws such as FISA? Even if such circumvention of the courts, FISA, etc. can be rationalized, why would the administration want to do so? The balance of powers and the oversight roles of the various branches are critical components of the American system. What can possibly be gained by not involving the judicial branch and obtaining a court order after these wiretaps are already in place?

Surveillance of suspected terrorists is absolutely essential to the security of America. Many people, myself included, believe that it can and must be done within the law. I personally don't believe that the current laws are overly cumbersome or unworkable. I feel that nothing in the FISA procedures impede speedy and thorough government investigations, nor do they prevent the government from protecting Americans from terror attacks on any level. If others disagree, they should lobby their legislators to have the laws changed or challenge the laws in court. If, on the other hand, we argue that the executive branch under current and future presidents may just ignore those laws that that they feel seriously inconvenience them or interfere with their desired operations, then we undermine the very foundations of the American system.

Nobody questions the need to wiretap suspected terrorists. Some of us just want to see it done legally and with proper oversight.

George Bush's Record in the War on Terror

I’ve found it baffling that George W. Bush has continued for so long to be perceived by much of the American electorate as doing a good job of making America safer. The facts suggest that President Bush has made extremely serious mistakes in the war on terror at almost every step.

What Needs to be Accomplished
The minimum goals of a post-9/11 war on terror should have been:
1. Capture the masterminds of the 9/11 attacks and neutralize their organization;
2. Forge a global collaboration for intelligence sharing and coordinated attacks on the terrorists’ infrastructure;
3. Develop a comprehensive domestic security policy to
a. prevent additional terror attacks and
b. better prepare front-line responders to react to possible future attacks;
4. Determine what America can do toward winning the trust, confidence, and cooperation of people in the Islamic and Arabic nations.

Unfortunately, President Bush has failed to completely achieve any of these objectives. In my opinion, he has actually made the situation worse.

What President Bush did Right
Immediately after the attacks of 911, President Bush offered much needed comfort and moral support to Americans. His administration uncovered an incredible number of details about the perpetrators of the attacks and identified Osama bin Laden as their primary leader. The administration determined that Bin Laden was located in Afghanistan and the United States made almost every attempt to legally extradite him before attacking that country.

The Failure in Afghanistan

Unfortunately, after decisively removing the Taliban from power in Afghanistan, President Bush did not press his advantage against Al Qaeda and continue to persue them in Afghanistan. On top of that, he missed a golden opportunity to demonstrate the benefits to Islamic countries of partnering with the West. Instead of investing billions of dollars in attacking Iraq, the United States could have turned Afghanistan into a showcase of democracy and Western friendship by strengthening the elected central government and by rebuilding the roads, bridges, schools, hospitals, and power utilities lost during years of warfare and Taliban rule.

Despite the lack of any clear threat from Iraq, President Bush chose shifted his focus to that country and decided to launch an invasion. This should have been a surprising choice, given the advice the president was receiving from so many quarters.

According to Senator Bob Graham, speaking on “Face the Nation” on September 5, 2004 about his book "Intelligence Matters: The CIA, The FBI, Saudi Arabia and the Failure of America's War On Terror,"
“[General Tommy Franks, in a February 2002 meeting,] laid out a very precise strategy for fighting the war on terror. First, we should win the war in Afghanistan; second move to Somalia, which as he described was almost anarchy but with substantial number of al-Qaeda cells, then to Yemen, and that we should be very careful about Iraq because our intelligence was so weak that we didn't know what we were getting into. And then, interestingly suggested that several European countries knew more about the realty of the situation in Iraq than we did, and that we should look to them for advice.”

Instead of pursuing a true victory in Afghanistan, the United States all but abandoned the country to warlords in most of the country, leaving only 9,000 troops to continue the search for Bin Laden and members of al-Qaeda. Now, several years after the fall of the Taleban, Bin Laden remains free and armed militias and Mujahideen factions are still the most powerful political players in Afghanistan. As reported in the November 1, 2004 issue of Time:
“Of the 30 high-value al-Qaeda targets identified by the CIA in 2001, [more than half are still at-large]… The International Institute of Strategic Studies estimates that as many as 90% of the 20,000 militants trained in al-Qaeda camps are still at large.”

The BBC summarized the result of President Bush’s Afghanistan policies:
“The security vacuum in Afghanistan created since the fall of the Taleban, has significantly increased the power of the factions. … Warlords have become entrenched. Turf wars between local commanders have been a feature of the post-Taleban period. And the Taleban themselves have re-emerged as a fighting force, worsening the security situation in the east and south-east.”

The Failure to Create a Global Collaboration
Contrary to the initial advice of General Franks and other advisors, President Bush turned his eyes toward Iraq. Based on unreliable sources, such as Ahmed Chalabi, and unsubstantiated assumptions and speculation by the intelligence community, President Bush chose to advocate an immediate military strike against Saddam Hussein in Iraq.

Brent Scowcroft, former National Security Advisor to Present Ford and Bush, warned at the time:
“An attack on Iraq at this time would seriously jeopardize, if not destroy, the global counter terrorist campaign we have undertaken.”

On February 5, 2003, the United States Secretary of State Colin Powell appeared before the UN to establish the urgency of engaging in a war with Iraq. The presentation failed to convince most of the UN Security Council -- with open skepticism by France, Germany, Russia, and China. Three weeks later, the U.S., the U.K. and Spain presented a draft resolution to the Security Council declaring that Iraq had failed to take its final opportunity. They were forced to withdraw the resolution when it became clear that such a declaration would be rejected by the international community. However, this U.S. engineered declaration had already created a serious rift between America and its allies.

The reckless march to war against Iraq was squandering the opportunities for international cooperation that had resulted from the goodwill felt by the world for America after the heinous attacks of 9/11.

Debacle in Iraq
President Bush maintained that there could be no delay, even though Iraq was diplomatically isolated, hobbled by economic sanctions, pinned down by “no-fly zones”, and in the midst of intense United Nations weapons inspection. President Bush not only claimed to have irrefutable proof that Saddam Hussein harbored weapons of mass destruction, but also asserted that the Iraqi regime had ties to terrorist organizations such as al-Qaeda.

This opinion was contradicted by many sources.
“It is unlikely that Iraq currently possesses an offensive chemical weapons capability comparable to its pre 1991 level. its ability to disseminate efficiently CW agent with missile warheads is extremely limited and unlikely to cause large casualties.” --- International Institute for Strategic Studies Dossier “Iraq’s weapons of mass destruction: a net assessment.” Sep 9th 2002

“The Iraqi air force now has approximately 200 fighter planes in active service but with low serviceability levels. Of this inventory, only about 20 are advanced planes that have any ability to confront most of the planes possessed by the United States or Israel. The rest are old planes from the 1970s, or even before.”--- General Shlomo Brom (ret.), Senior Research Associate Jaffee Center for Strategic Studies, Tel Aviv University

“Iraq and al-Qaeda are not obvious allies. In fact, they are natural enemies. A central tenet of Al-Qaeda’s jihadist ideology is that secular Muslim rulers and their regimes have oppressed the believers and plunged Islam into historic crisis … Mr. Hussein has remained true to the unwritten rules of state sponsorship of terror: never get involved with a group that cannot be controlled, and never give a weapons of mass destruction to terrorist who might use it against you.” -- Daniel Benjamin, former Member of the U.S. National Security Council

In spite of world opinion that reflected the views of Daniel Benjamin and General Brom, and without any tangible evidence to support claims of Iraqi WMD, President Bush launched an invasion at 9:34 PM EST on March 19, 2003 with a token coalition.

The takeover of Iraq by the U.S. was an unparalleled military success. Three weeks after the invasion began, the U.S. had toppled Saddam Hussein, but it soon became obvious that the results were not what President Bush had predicted. There were no massively destructive weapons. There were no ties to al-Qaeda. The U.S. troops were not welcomed with flowers and garlands. Instead, the country was plunged into near-anarchy and civil war. Hundreds of tons of unprotected weapons fell into the hands of insurgents. Terrorist recruits flocked to the country in droves. American troops became sitting-duck targets. More than 2,000 young American women and men have been killed. Many tens of thousands of Iraqis have lost their lives. Car bombs echo through the streets of Baghdad. The country is falling into civil war.

Pat Buchanan, in his book "Where the Right Went Wrong," wrote:
“In 2003, the United States invaded a country that did not threaten us, did not attack us and did not want war with us to disarm it of weapons we have since discovered it did not have. ... Now our nation is tied down, our Army is being daily bled in a war to create democracy in a country where it has never before existed. ... With the guerrilla war, U.S. prestige has plummeted."

Appearing on “Face the Nation” on September 5, 2004, Mr. Buchanan accurately summed it up:
“The United States, by invading that country and taking over its capital, we have inflamed the entire Middle East and Arab and Islamic world. American prestige and support for the president and the United States has never been lower in that part of the world. And Mr. Rumsfeld's question has been answered.

“He asked, ‘Have we been creating more terrorists than we are killing?’ When he said that, some 5,000 insurgents were said to be in Baghdad by General Abizaid. The latest count is 20,000. I believe this war itself is creating a pool, a spawning pool out of which Osama bin Laden can draw recruits. I think that there has been nothing that has done more to put Osama bin Laden, if you will, in the mainstream of the Arab cause of nationalism than what appears to the Arabs to be to be a near-imperial adventure by the United States in Iraq.”

The invasion of Iraq, far from making the world safer from terrorism, has stoked the fires of anti-American hatred:
‘Western intelligence officials and leaders in the Muslim world say the U.S. invasion and occupation of Iraq has, at the least, given bin Laden and his allies a potent recruiting tool” – Time Magazine, November 1, 2004

Failure to Safeguard the Homeland
The White House tells us:
“With strong bipartisan support President Bush created the Department of Homeland Security – the most comprehensive reorganization of the Federal government in a half-century. The Department of Homeland Security consolidates 22 agencies and 180,000 employees, unifying once-fragmented Federal functions in a single agency dedicated to protecting America from terrorism.” --- The White House Website.

Although the White House has spent billions of dollars on the Department of Homeland Security, the results have been very disappointing. An “orange” or “red” color code announcement based on “chatter” or the discovery of four year old emails does little to protect America. When I hear that we are at level “orange”, what should I do? Should I stay home from work? Should I keep my children home from school? Should I duct tape my windows?

When the 9/11 Commission was proposed to investigate ways to prevent future terrorist attacks and improve our preparedness, President Bush opposed it.
“President Bush and Vice President Cheney both contacted then-Senate Majority Leader Tom Daschle in the months after 9/11 to insist on strict limits in the scope of any investigation into the attacks. And despite entreaties from the families of victims of 9/11 attacks and a bipartisan group of senators and congressmen, the president vocally resisted forming an investigatory commission. President Bush only relented on November 27, 2002, a year after the attacks.” -- Center for American Progress

Three years after the attacks, according to the presidential candidates in the last election, between 4,000 and 8,000 people still stream illegally across our borders each day. 95% of containers that come into our ports are not inspected. Assault weapons are, for the first time in years, legally available in the United States to any domestic terrorist that desires to purchase them.

The Bush administration has failed to adequately fund our first responders in the event that another attack takes place.
“Despite the fact that a blue-ribbon panel warned more than a year ago that the United States is not providing adequate resources to local emergency responders, the [Republican] Senate today failed to pass an amendment to the Homeland Security Appropriations bill, authored by Senators Debbie Stabenow (D-MI) and Christopher Dodd (D-CT), that would implement the panel’s recommendations.

“It was Stabenow’s second attempt to provide an additional $15 billion to train and equip first responders, a legislative proposal based on the recommendations of a task force headed by former Republican Senator Warren Rudman and including Nobel laureates, U.S. military leaders, former high-level government officials and other senior experts. The panel’s findings were released in June 2003 in a report titled “Emergency Responders: Drastically Underfunded, Dangerously Unprepared.” – Website of United States Senator Debbie Stabenow, Michigan, September 9, 2004

Our nuclear facilities and military research organizations remain virtual sieves leaking classified data and nuclear material.

CBS News reported on January 1, 2004:
“The Energy Department is conducting a widespread review of security at America's nuclear weapons laboratories after reports of hundreds of missing keys, some of which could allow access to sensitive areas.”

CBS News reported on April 22, 2004:
“Two pieces of a highly radioactive fuel rod are missing from a Vermont nuclear plant, and engineers planned to search onsite for the nuclear material, officials said… The material would be fatal to anyone who came in contact with it without being properly shielded, Sheehan said. Spent nuclear fuel also could be used by terrorists to construct so-called dirty bombs that would spread deadly radiation with conventional explosives.”

The San Francisco Chronicle reported on July 16, 2004:
“All classified research was halted Thursday at the University of California-run Los Alamos National Laboratory as investigators entered the eighth day of a frustrating search for two missing computer data storage devices.”

Where is the evidence that George Bush has made America safer?

George Bush's Failure to Make America Safer
George W. Bush is not keeping America safe. His policies have been reckless and risky. They are neither comprehensive nor complete. They put us in greater danger every day. His choices are based on faith instead of facts. The results are catastrophic and portend disaster for our country if they are allowed to continue.

Why do so many Americans still continue to view President Bush as an effective enemy of terrorists? Please tell me. I’m listening.

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