Expanding Surveillance Authority
The surveillance power demanded by President Bush would not necessarily provide any better protection from terrorism, but it would certainly expand executive branch power.
On December 17 of last year, during his weekly radio address, President Bush confirmed reports by the New York Times and CNN that, following the 9/11 attacks, he had given the National Security Agency (NSA) authorization to eavesdrop on Americans communicating with people overseas. The president said that ordering such electronic surveillance without judicial warrants is "fully consistent" with his "constitutional responsibilities and authorities," and charged that the media exposure of this secret program is illegal and "damages our national security and puts our citizens at risk."
The NSA, which eavesdrops on billions of communications worldwide, is barred from domestic spying without a warrant, as required in the Fourth Amendment of the Bill of Rights. The Justice Department can get warrants from a special court called the FISA (Foreign Intelligence Surveillance Act) Court, a 10-judge panel established in 1978 expressly for that purpose. In emergencies, the NSA may even conduct domestic surveillance for 72 hours without a warrant. But by the end of that three-day period, it must obtain a warrant. Over the past nearly 30 years, the FISA Court has denied only a handful of the thousands of warrant requests. And there is no indication that the 72-hour emergency provision has been inadequate to deal with serious terrorist threats.
On August 17 of this year, U.S. District Judge Anna Diggs Taylor ruled that the president's warrantless searches are unconstitutional. The administration immediately appealed the decision and on October 4, a three-judge panel ruled that the NSA may continue its eavesdropping while awaiting a final ruling from the 6th Circuit Court of Appeals.
Interestingly, during the December 17, 2005 radio address, President Bush cited the case of 9/11 hijackers Khalid Al-Mihdhar and Nawaf Al-Hazmi as a prime example of the need for warrantless surveillance. This duo, he said, "communicated while they were in the United States to other members of al Qaeda who were overseas, but we didn't know they were here until it was too late." It would be difficult for the president to come up with a worse example to make his point.
The various official 9/11 investigations showed that the FBI, CIA, and NSA all were monitoring Hazmi and Mihdhar. In San Diego, the duo even lived with Abdussattar Shaikh, an acknowledged undercover asset of the FBI. The two also had regular contacts with San Diego area militant jihadists under FBI surveillance, such as Omar al-Bayoumi and Osama Mustafa. FBI Agent Stephen Butler made repeated efforts to have them arrested, but he was overruled from above.
Moreover, a review of the 9/11 hijackers' visa applications by a panel of former consular officials revealed that all 15 of the publicly available applications, including Mihdhar's, had been issued in violation of existing law, despite blatant red flags that should have disqualified all of them. Thus, there is no reason to believe that the kind of extraordinary power demanded by President Bush would have provided any more needed intelligence or that it would have been acted on any better than the abundant data that was already available.
The House and Senate GOP leadership cynically adopted the White House strategy of using the issue before the November elections to paint the Democrats as weak on national security if they didn't vote for legislation to gut our Fourth Amendment. However, although the House passed its version of the bill (H.R. 5825) on September 28 (see House vote #40 in the "Conservative Index," page 26), the Senate did not vote on its version (S. 3931) prior to adjournment. It is very likely that Congress will try to enact some kind of expansion of executive surveillance authority, in line with what the White House is demanding, during the lame-duck session.
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