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.