Daily Archives: January 24, 2006

The warrantless eavesdropping defense

From Bush’s speech at the University of Kansas yesterday, on the subject of warrantless surveillance:

This is — I’ll repeat to you that you hear words: domestic spying. These are not phone calls within the United States. This is a phone call of an Al Qaida, known Al Qaida suspect, making a phone call into the United States.

I’m mindful of your civil liberties, and so I had all kinds of lawyers review the process. We briefed members of the United States Congress, one of whom was Senator Pat Roberts, about this program.

You know, it’s amazing that people say to me, “Well, he was just breaking the law.”

If I wanted to break the law, why was I briefing Congress?



Federal courts have consistently ruled that a president has authority under the Constitution to conduct foreign intelligence surveillance against our enemies. Predecessors of mine have used that same constitutional authority.

BUSH: Recently, there was a Supreme Court case called the Haas case. It ruled — the authorization for the use of military force passed by the Congress in 2001 — in other words, the Congress passed this piece of legislation, and the court ruled, the Supreme Court ruled it that it gave the president additional authority to use what it called the fundamental incidents of waging war against Al Qaida.

I’m not a lawyer, but I can tell you what it means: It means Congress gave me the authority to use necessary force to protect the American people, but it didn’t prescribe the tactics. It said, “Mr. President, you’ve got the power to protect us, but we’re not going to tell you how.”

And one of the ways to protect the American people is to understand the intentions of the enemy. I told you it’s a different kind of war with a different kind of enemy. If they’re making phone calls into the United States, we need to know why to protect you.

First of all, Bush is airbrushing an important fact. He repeatedly refers to the NSA monitoring phone calls into the United States. But the NSA was always allowed to monitor incoming international calls without FISA warrants, as long as the results could not be used against Americans; the point is that, under the Bush policy, this rule was also applied to outgoing international calls.

Secondly, to quote Joe Gandelman at The Moderate Voice:

So he argues he was trying to protect Americans (fair enough) and that it’s vital to know the enemy’s intentions (fair enough). But neither of these factors explain why it was somehow impossible to understand the intentions of the enemy either by either using warrants, getting warrants after the fact as allowed by FISA or by going to Congress and having them make any changes that would have made the functioning of the FISA law more efficient in the eyes of the administration.

Wesley Clark basically made the same point on Fox this morning, and I have to say I agree.

As for Bush briefing Congress: Clark pointed out that only a few members of Congress were briefed about the surveillance program, their objections were given no weight, and since the program was highly classified they were bound by secrecy not to go public with their concerns about it. This is not my (or, I hope, anyone’s) idea of legislative oversight.

I am still not convinced by the rationales given by Bush defenders for bypassing those FISA warrants. Yes, sometimes speed is of the essence, but as critics have repeatedly pointed out, the warrants can be obtained retroactively up to 72 hours later. The other reason that has been cited is the possibility of leaking and the need to prevent it; but are those concerns based on any actual instances of leaking? I would think that FISA courts, set up specifically to deal with foreign intelligence surveillance, know how to keep their secrets.

But, once again: if Bush and his advisors were so convinced that warrantless surveillance was necessary, why not specifcially ask Congress for those powers? So as not to tip off the Al Qaeda and the rest of the terror network? Sorry, but I don’t see why the Al Qaeda would change its behavior based on the knowledge that its operatives can be subject to warrantless surveillance; surely terrorists would assume that U.S. intelligence agencies would have no trouble obtaining warrants to monitor Al Qaeda communications.

So far, none of the explanations are wholly convincing, and this executive power grab remains troubling.


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