The Bush Administration never claimed that the FISA is unconstitutional but regarded it outdated and requires amendments. By doing so, Bush Administration deluded the American that they were acting in accordance with the FISA. President Bush on certain occasion accepted publicly that are working under the rules and regulation of FISA. For example, President said on April 20, 2004: "Now, by the way, any time you hear the United States government talking about wiretap, it requires–a wiretap requires a court order.
Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. " (The White House, 2004, Our Job…2006) Senator Russ Feingold provides further statements while President Bush asseted that the surveillence programe isa in complete compliance with FISA. (Feingold, Russ. 2006) When the matter was disclosed to public, Bush Administration provided false and fabricated justifications that President is complying with his authoritative powers.
Irrespective of legality controversy of the above-mentioned counter-measures, another question is about the effectiveness and utility of this program. Whether empowering NSA to wiretap at the mass level will yield into secured America? Experts are still skeptic about this assumption. Mark Hosenball, and Evan Thomas says in this regard,” The harder question is whether the techno wizards at the NSA, overwhelmed by tidal waves of digital data, searching for tiny poisonous fish in a giant sea, can provide true security from another 9/11” (Hosenball, Mark and Thomas, Evan.
2006) Another effect of above-mentioned measures is the exercise of solemn powers by the President without any approval from Congress or American people. Bush administration is of the view that President derives its power from Constitution. Constitution of United States of America installs President of America as the supreme commander of American forces and a caretaker of the laws. Article II of the constitution state that American president is "Commander in Chief of the Army and Navy of the United States," and he "shall take Care that the Laws be faithfully executed".
The law will be legislated by Congress. The proper check and balance system and distribution of powers among Presidency, Legislature and Judiciary limit the executive powers of presidency. Although judiciary accepts the presidential to conduct domestic electronic surveillance inside the constraints of the Fourth Amendment and the jurisdiction of Foreign Intelligence Surveillance Act but no decision or ruling has prompted Congress to disable itself from endeavoring hinder the way of unconstitutional use of that powers.
Even Supreme Court has ruled that Congress possess inherent powers to regulate and supervise domestic surveillance. We can debate whether he (Bush) had a good or bad motivation, but it was a crime. We all are well aware of the fact that Bush intentions are good. His sole motive was to authorize the agencies with necessary powers for speedy interception of terrorists’ activities. But there is a proper and lawful way to capacitate the NSA with this authority i. e. to formulate new laws if the previous ones are obsolete and not capable of handling the critical situation.
Feingold says in this regard that “Defeating the terrorists should be our top national priority, and we all agree that we need to wiretap them to do it. In fact, it would be irresponsible not to wiretap terrorists. But we have yet to see any reason why we have to trample the laws of the United States to do it. ”(Our Job…, 2006, p. 28).
ACLU vs. NSA. (2006) http://fl1. findlaw. com/news. findlaw. com/nytimes/docs/nsa/aclunsa81706opn. pdf Gouvin, Eric J. Bringing Out the Big Guns: The USA PATRIOT Act, Money Laundering, and the War on Terrorism. Baylor L. Rev. 5 5. 101 (2003) https://epic.org/privacy/terrorism/fisa/nsaletter122205.pdf