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.
Legality of the Issue This order has ethical connotation as it violates the celebrated ideals of freedom but legal and constitutional implications remains the hub of this controversy. The legality of the issue includes three aspects of the excutive order in its domain; Foreign Intelligence Surveillence Act and its oversight by Bush Administration, constitutionality of the issue, Presidential Powers and Fourth Amendment. Foreign Intelligence Surveillance Act
Foreign Intelligence Surveillance Act, promulgated in 1978 defines the extent and limits of Jutice department’s authority for mass surveillence and wiretapping. According to FISA, Justice Deparetment must obtain surveillence warrant from Foreign Intelligence Survellience Court (FISC) within 3 days after the commencement of survillence. This act provides FISC judge to grant permission for surveillence if the judge believes that “there is a probable cause to believe that… the target of the electronic surveillance is a foreign power or an agent of a foreign power.
" (50 U. S. C. §1805(a)(3). ) FISA also devised another mechanism as it provided the president with poewers to to authorize Justice Department to evaesdrop on foreign govenments and their agents for upto one year without a court order. (50 U. S. C. §1802(a)(1). ) This act clearly manifests that surveillence and wiretapping is permitted when a foreign power and/or its agent are involved in activities that are a threat to American security or international terrorism.
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) General William Moschella, Assitant Attorney for legistaive affairs in Justice Department questions the quickness of FISA and its mechanisms and defended the presidential order to equip NSA with warranless surveilllence authority. He wrote, “FISA could not have provided the speed and agility required for the early warning detection system.
In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities. (Department of Justice. 2005) He further said that FISA is good tool in a long-term investigation perspective but unable to deliver in speedy environment and the government is “taking full advantage of any developments in the law.
” (Department of Justice. 2005) In response to this stated letter by Assitant Attoreney, 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.