Prior to Patriot Act, U. S. President George W. Bush promulgated a secret executive order soon after 9/11 that capacitated the National Security Agency (NSA) with an authority to carry out wiretapping of suspected persons in America. The hallmark of this executive order was to conduct surveillance without acquiring approval or warrants from a FISA court. This order and activity was unlawful and unconstitutional as it trespassed its legal and constitutional jurisdictions and violated the legal and constitutional privacy rights of the people.
New York Times reports that Bush administration justified this mass wiretapping program as a “critical tool in helping disrupt terrorist plots and prevent attacks inside the United States” (Risen. J & Lichtblau Eric. 2005) and considered it vital for national security. But the opponents of the program hold the view that this order has serious legal constitutional repercussions and has harmed the cherished American ideals of personal freedom, right of privacy and the constitutional provision for no illegal and unjustified intrusion in the lives of American national provided under fourth amendments.
Bush administration defended the presidential order on the grounds that FISA and its processes impede the speedy and agile actions needed to acquire the information about the activities of terrorists and their agents and to disrupt the acts of terrorism. US Attorney General Alberto Gonzales asserts that presidential order about the domestic surveillance is in accordance with authority vested in the office of President by U. S. constitution. He claims that: The terrorist surveillance program is firmly grounded in the President's constitutional authorities.
The Constitution charges the President with the primary responsibility for protecting the safety of all Americans, and the Constitution gives the President the authority necessary to fulfill this solemn duty. See, e. g. , The Prize Cases, 67 U. S. (2 Black) 635, 668 (1863). It has long been recognized that the President’s constitutional powers include the authority to conduct warrantless surveillance aimed at detecting and preventing armed attacks on the United States.
Presidents have repeatedly relied on their inherent power to gather foreign intelligence for reasons both diplomatic and military, and the federal courts have consistently upheld this longstanding practice. (U. S. Department of Justice, 2006) In response to this stated arguments by Attoreney general and cettain other issues raised by official supporters, renowned legal scholars and ex-government officials forwarded their plea in the form of a leeter to Chairs and Ranking members of House and Senate.
The letter encompasses all the legal issues regarding NSA authority for warrantless surveillence and concludes that justification provided by Assitant Attorney is not a plausible legal defense but a fabricated justification to cover up the legal loopholes of the presidential order. The illegality of the executive order was further reinforced by the court decision in ACLU vs NSA case. The U. S. District Court Judge of Eastern District of Michigen ruled that wiretapping without warrant from FISA is an unlawful and unconstitutional activity as it is the violation of individual privacy rights and freedom.
The judge further ordered to eavesdrop on phone calls with immediate effect. In her ruling she wrote: "The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well. " (ACLU v. NSA. 2006 p. 33)
