The letter further discussed the sufficiency issue of FISA to tackle the speedy processes in detail and hold the view that “if the Administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the President—or anyone else—to seek to change the law.
But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable. ”(ON NSA SPRYING: A LETTER TO CONGRESS. 2006) 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) 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.
Another important aspect of this controversy is the violation of individuals’ rights provided under fourth amendments. The Bush order enabling NSA to conduct warrantless wiretapping is a violation of Fourth Amendment that protects the right of American Citizens against unreasonable surveillance. This Amendment states that "right of the people to be secure… against unreasonable searches and seizures" and "no Warrants shall issue, but upon probable cause".
Several judicial rulings has clarified that FISA is not a violation of the Fourth Amendments because FISA recognizes the need of a probable cause and requires the agencies to produce a probable reasonable cause for the issuance of surveillance warrants. The executive order issued by the President Bush for warrantless surveillance is an explicit violation of the fourth amendment as it enables the security agencies to intrude the private lives of American people without providing any “probable cause” for this act. Ethical Issues
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 NSA wiretapping, another question is about the effectiveness and utility of the NSA wiretapping. 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) Conclusion “We can debate whether he (Bush) had a good or bad motivation, but it was a crime. ”(Turley. 2006) 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). And if the present surveillance act requires modifications and amendments, it must not be modified at the cost of the rights of privacy provided by fourth amendment.
In this perspective the recommendations of the American Bar Association must be considered that says that “Any amendment to FISA — and some of these bills, including the Specter bill and others, would eliminate that requirement of a warrant, and in doing that, damage, fatal damage, would be done to the Fourth Amendment of the U. S. Constitution. And we can't afford to have one of our Bills Of Rights so easily dismissed. The Fourth Amendment requires that there be a warrant issued and that there be probable cause existing before someone is spied on.
Any bill that Congress enacts must continue to have those two Fourth Amendment protections. ”(ABA. 2006)
- ACLU vs. NSA. (2006) http://fl1. findlaw. com/news. findlaw. com/nytimes/docs/nsa/aclunsa81706opn. pdf
- American Bar Association, (2006) President Bush is "Undermining Rule of Law" By Ignoring Laws Passed by Congress. July http://www. democracynow. org/article. pl? sid=06/07/26/147209
- Hosenball, Mark and Thomas, Evan. (2006, April 22) Hold the Phone. Newsweek 147 (21): 22-32 Justice Dept. Defense of Domestic Surveillance (2005, December). EPIC https://www.epic.org/privacy/terrorism/fisa/nsaletter122205.pdf