The president’s National Security Agency warrantless wiretapping program has been largely undiscussed in the public since its revelation almost a year ago, yet the program itself and the assertions being made by the current executive branch should concern every American.
After its existence was leaked to the press, the White House made a prolonged and concerted effort to mislead the American public about its legality. The Federal Intelligence Surveillance Act (FISA), enacted by Congress in 1978, set up a federal court specifically to oversee the wiretapping of Americans; it allows the federal government to wiretap persons residing in the United States only if a warrant is obtained from the aforementioned court – but does not regulate surveillance outside U.S. borders. Since its inception, it has been used by every president, and it has almost never denied a wiretap request: just five out of almost 19,000 requests have been denied.
Instead of being honest, however, the president has consistently made phony arguments in an attempt to curb criticism of his misconduct. For example, in his 2006 State of the Union address the president said, “So to prevent another attack — based on authority given to me by the Constitution and by statute – I have authorized a terrorist surveillance program to aggressively pursue the international communications of suspected al Qaeda operatives and affiliates to and from America. Previous presidents have used the same constitutional authority I have…”
In this concise statement, the president made four claims he knew were unfounded or just plain wrong. First, nothing in the U.S. Constitution gives any president the right to wiretap Americans without a court order. The president’s only argument in this case is his insistence that Article II, Section 2 of the Constitution grants him “war powers” buttressing this “inherent authority” claim to spy on Americans as he pleases; however, the only mention of presidential war powers in Article II, Section 2 is the well-known statement that the president is the “Commander in Chief of the Army and Navy of the United States.” Are we to believe that the president can ignore federal law and spy on Americans how and when he chooses because he is the commander in chief of the military? That is a flimsy argument.
Second, his claim that his actions are granted via a “statute” are false. In fact, the opposite it true: federal statute specifically prohibits what the president did. Third, the president implies that the surveillance program he ordered dealt with “international communications” of suspected terrorists. Yet, the president has admitted that he ordered spying on American soil.
Fourth, the president has claimed that previous presidents have wiretapped Americans without a court order, yet the president has presented no evidence that any president after 1978 ever violated FISA. The president is correct in that presidents before 1978 ordered similar spying, but of course those presidents were acting before FISA was enacted by Congress, and before wiretapping on American soil without a court order was made a crime.
The president has presented no substantive arguments in defense of his conduct. As a last resort, he has attempted to shift attention from his misconduct by claiming that the law restricts him from protecting the American people. Not only has he presented no evidence in support of this claim, it is an obvious obfuscation of the issue. Even if the law is unnecessarily restrictive, how does that justify breaking the law? The issue is not wiretapping – the issue is the rule of law, and herein is where it becomes of paramount importance.
The president is claiming that he can ignore a federal law so long as he feels the law restricts him from protecting the American people. I hope the reader can see how risible this assertion is. It is antithetical to our system of government, and, in fact, negates the authority of the entire Congress!
The president can and should wiretap people around the world and on American soil; counterintelligence is an imperative tool in our war on terror. Yet, I don’t see how we can win the war on terror by undermining the very principles for which we are fighting. The president should admit his misconduct and come within the bounds of the law so we can stop this distraction and refocus our attention on protecting America and securing victory against those who wish us harm.