A few weeks ago, allegations surfaced that President Bush has authorized the NSA to spy on people inside the United States – perhaps even American citizens – without warrants.
Already, numerous Democrats such as Senators Ted Kennedy (D-MA) and Russ Feingold (D-VT) have called for impeachment, claiming that the president is violating our civil rights.
I would be quick to condemn the White House if President Bush were really operating outside the scope of his powers. However, the president actually does maintain the ability to authorize warrantless wiretaps.
Many agree that the president should be using the Foreign Intelligence Surveillance Act (FISA) to obtain information from al-Qaeda members. The act, which was passed in 1978, allows officials to get warrants from a secret eleven-member court.
However, the FISA court isn’t always fast enough, or it sometimes serves as an obstacle in and of itself. Because of the FISA court’s reluctance in granting domestic wiretap warrants, the FBI decided not to file for a warrant to search Zacarias Moussaoui’s computer because it had been turned down so many times in the past. If the warrant had a good chance of being granted, the U.S. government would have known about the Sept. 11 attacks months in advance.
To get a warrant issued from the FISA court, federal officials also have to provide probable cause. But if the phone number they want to track is just a random one in an al-Qaeda member’s phone book, there is no way to prove probable cause since the owner of the phone number is unknown.
For over 40 years, courts in the United States have sided with the executive branch on the case of spying without warrants as long as the threats are foreign. Officials interested in wiretapping people regarding domestic threats must go to the courts and obtain a warrant.
An excellent example of this is the majority opinion of the United States v. Duggan (1984): “-virtually every court that had addressed the issue had concluded that the president had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillance constituted an exception to the warrant requirement of the Fourth Amendment.”
As for allegations that the Bush White House is illegally wiretapping American citizens’ computers without a warrant, the Truong case provides proof that the president’s actions are legal.
In 1980, the Carter administration successfully argued its authority to wiretap a U.S. citizen without a warrant. The citizen in question, Truong Dinh Hung, was passing U.S. intelligence to the North Vietnamese during the 1970s peace talks. The majority opinion stated that “we agree with the district court that the executive branch need not always obtain a warrant for foreign intelligence surveillance.”
The Clinton administration also used warrantless wiretaps and searches. Before the Senate Intelligence Committee in 1994, the Deputy Attorney General Jamie Gorelick testified, “The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as has been done, delegate this authority to the Attorney General.”
Another facet of this debate that’s being ignored is a president’s power during wartime. President Franklin Roosevelt had Japanese Americans imprisoned during World War II. President Abraham Lincoln suspended the writ of habeas corpus in order to keep citizens jailed longer. Though a frightening concept now, the president’s authorization of spying without warrants is by contrast a relatively harmless wartime action.
As a Republican, I cringe at the thought of the government being given more power in the – usually vain – hope that it is given back. In this instance, however, I try to remind myself that every administration since the 1960s has been using these programs, and I still have my civil rights intact.
Is the president’s practice of authorizing spying without warrants a bit frightening? Of course. But is it an impeachable offense? Hardly. The Democrats need to cut their losses, drop the issue and focus on something that’s actually important.
Contac the columnist at [email protected]