Rose Helens-Hart
03-09-06
"Civil Rights to Bush—come in please!"
NSA illegal wiretapping
It turns out that after 9/11, Bush granted the National Security Agency (NSA) the power to
wiretap with out warrant. Bush defends his position by saying that the program is "vital" to
protecting the U.S from terrorist attacks and that it is perfectly legal. The argument is that the
president’s authority to spy on U.S. citizens or groups communicating with suspected
terrorists abroad was granted by Congress one week after September 11, 2001. The
Authorization for Use of Military Force (AUMF), without specifically mentioning
wiretapping, grants the president broad authority to "use all necessary…force against those
nations, organizations, or persons he determines planned, authorized, committed, or aided the
[9/11] terrorist attacks." People would perhaps accept that excuse if obtaining a time-
sensitive warrant were hard…The 1978 Foreign Intelligence Surveillance Act (FISA)
established a secret court to grant surveillance warrant to intelligence agencies monitoring
communications between American on U.S. soil and suspected terrorists abroad. The NSA
could have easily gotten warrants—WTF mates—what is probable cause these days anyway
but a guy wearing a turban? So, let’s get into it…
Pro warrantless wiretapping:
1. It is a needed security precaution:
A. The U.S. is at war with terrorists, they do no comply with the state enforced "rules of
warfare" thus new security tactics must be attempted. We must take the enemy by surprise—
instead of publicly announcing the position of our troops by drawing maps in the sand on TV.
Geraldo Rivera is dumb.
B. Administration officials have stated that the program has saved "thousands of lives"
i. Alberto Gonzales said, "The NSA terrorist surveillance programs is a military
operation designed to detect them [terrorists] quickly. Efforts to identify the terrorists
and their plans expeditiously while ensuring faithful adherence to the Constitution
and out existing laws.
C. Whether we can prove it has saved lives or not is beside the point—the program would
still counter terrorism by weakening its goal of creating mass fear. The program makes
people feel safe because they know the administration is doing everything possible to prevent
terrorism.
D. People also don’t seem to mind the thought of the government listening to suspected
terrorist with or without a warrant. If the NSA were to listen to your phone calls, and turns
out you weren’t talking to a terrorists…oh well, no harm no foul you wouldn’t be arrested.
2. It is legal:
A. The Authorization for Use of Military Force (AUMF), without specifically mentioning
wiretapping, grants the president broad authority to "use all necessary…force against those
nations, organizations, or persons he determines planned, authorized, committed, or aided the
[9/11] terrorist attacks."
B. Administration officials argue this authority includes the power to secret gather
intelligence on al-Quaeda and associated groups.
i. Their argument was upheld by the Supreme Court’s 2004 ruling in Hamdi v.
Rumsfeld which—though related to the detention of U.S. citizens during war time—
suggests the AUMF affords the president implicit powers to monitor U.S> citizens
corresponding with suspected terrorists.
ii. Alberto Gonzales said that "...it is inconceivable that the AUMF does not support
the president's efforts to intercept the communications of our enemies.."
iii. He also says that AUMF is not a blank check for the President to cash at the
expense of the rights of citizens. The NSA's program is narrowly focused on the
international communications of persons believed to be members or agents of al
Quaeda or affiliated terrorist organizations.
C. There have been no signs of abuse of the program (aside from claims of it being illegal)
and though not specifically mentioned in the AUMF, it is by no stretch of the imagination
that the AUMF covers this type of action.
3. Does not violate the 4th Amendment
A. The 4th amendment is supposed to protect citizens from unlawful search and seizure
B. Like sobriety checkpoints or border searches, this program involves “special needs”
beyond routine law enforcement, an exception to the warrant requirement upheld by the
Supreme Court as consistent with the Fourth Amendment.
C. White house officials stress that unless a U.S. citizen is communicating with a terrorist
suspect or organization overseas, their correspondence would not be monitored.
Con Warrantless Wiretapping:
Program violates of civil liberties:
A. The 4th amendment is supposed to protect people from unlawful search and seizure.
White house officials stress that unless a U.S. citizen is communicating with a terrorist
suspect or organization overseas, their correspondence would not be monitored. Yet this has
been untrue.
i. Court cases have been brought against the NSA before by groups like the American
Civil Liberties Union and Greenpeace, as well as by scholars like Hoover Institutions
Larry Diamond and Vanity Fair’s Christopher Hitchens, who communicate actively
with contacts in the Middle East
B. Allowing the NSA to wiretap without warrant would lead to further harassment and poor
leads because it doesn’t even have to have probable cause to wiretap.
C. Probable cause is replaced with suspicion—and the fed’s definition of a “suspected
terrorist” may not meet the laugh test.
i. In the mass roundup of more than 1,200 people shortly after 9/11, it took very
little for a Muslim or Arab illegal immigrant to be considered a "suspected
terrorist," according to a 2003 report by the Justice Department's inspector
general. Arab students were locked up as suspected terrorists for working at
pizza parlors (in violation of their student visas)
ii. A Pakistani immigrant was jailed after attracting attention because he and his
Queens housemates let their grass grow long and hung their underwear out to
dry on the fence;
iii. One Muslim was arrested because "he had taken a roll of film to be developed
and the film had multiple pictures of the World Trade Center on it but no
other Manhattan sites," the inspector general noted.
iv. Some FBI agents were even instructed to look in phone books to find Arab- or
Muslim-sounding names, according to Newsweek columnist Steven Brill.
D. Without probable cause and arguably racist and illogical suspicions, this program is
definitely a violation of people’s 4th amendment rights.
E. Violation of this amendment is bad because it leads to the unnecessary harassment of
private citizens and could lead to other intrusions: secretly going through mail, searching
property etc.
F. There is no “special need” scapegoat to wiretap warrantlessly because FISA grants
warrants for this kind of covert surveillance and even allows “after-the-fact” warrants.
Program is illegal:
A. First, in a 1973 Supreme Court case, United States v. United States District Court (often
referred to as the Keith case) involving a plot to blow up a CIA office, the court ruled that the
executive branch, even when issues of national security are at stake, does not have the
authority to spy on U.S. citizens on U.S. soil without a warrant.
1. The White House says this decision does not involve communications with foreign
entities and is irrelevant—but the U.S citizen is still being violated so there should be
no exception to this rule
B. The White House is also violating FISA. The secret court was created expressly for this
kind of covert surveillance, has rarely denied warrants and even allows “after-the-fact”
warrants up to three days.
i. You have to ask what could they possibly using as a definition of probable
cause if they don’t want to go to FISA—are they scared their request would be
turned down?
ii. Without judicial oversight, proper justification and protections for citizens can
not be ensured
C.AUMF does not explicitly authorize warrantless wiretapping on U.S. citizens. With all of
the other legal statements that call this program illegal, it is silly for the administration to
hide behind “it doesn’t say we can’t” logic.
Jeopardizes the prosecution of alleged terrorists:
A. If evidence obtained under the warrantless surveillance program was or will be used in
any criminal prosecutions (as the administration has asserted), then those convicted or
accused terrorists can and surely will raise a constitutional challenges and jeopardizing these
criminal cases.
B. The jeapordization is needless when the NSA could easily secure a warrant from FISA.
Evidence w/warrant also strengthens the government’s case in court since it reduces the
“terrorist’s” ability to get such evidence thrown out or in some other way discredit it.
C. The warrantless program increases the chances that even if we found a terrorist plot by
means of wiretapping that we could not punish those responsible for it due to red tape.
Program harms ongoing investigations:
A. The program has misdirected resources that would be better spent pursuing terrorists.
B. Legal NSA eavesdropping—or “turning on the spigot” in the words of former NSA
Director Michael Hayden—yielded a tremendous volume of information that led nowhere.
C. After 9/11, every lead no matter how insignificant must be checked out.
i. According to one supervisory FBI agent, the NSA material is viewed as
unproductive and agents joked that a new bunch of tips meant more “calls to Pizza
Hut”
D. The 9/11 Commission reported that even before 9/11 valuable leads were not pursued and
thousands of hours (legally obtained) transcripts went untranslated. The president’s domestic
spying program only made an incredibly difficult job harder.