In the mid 1970 's, Congress learned that both Democratic and Republican Presidents had been using "national security " concerns as an excuse to tap the phones of celebrities, war protesters and political activists. In response to these abuses of power, Congress passed the Foreign Intelligence Surveillance Act (FISA) which made it illegal to conduct electronic surveillance on Americans without a warrant or statutory authorization. President Bush explained:" ... 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. " -- April 2004
You can 't say it much clearer than that. So, it came as quite a shock to Bush-believers when the New York Times (12/16/05) revealed that, for the past four years, President Bush has been secretly authorizing the National Security Agency (NSA) to spy on American citizens without a warrant.
At first, the Bush Administration refused to even confirm that Americans were being spied on, but it wasn 't long before they were making a laundry list of excuses for breaking the FISA law. Their reasons run from the inane to the insane.
Bush claims they don 't have time to get warrants because they need to "move faster and quicker " to catch the evildoers. That would make sense if FISA hadn 't set up a special court for the sole purpose of issuing the required warrants. Warrants can be obtained within hours --or even minutes, if necessary. If that still isn 't fast enough, the law allows the government to start the surveillance immediately, and then request the warrant later. You can 't get much faster than that.
Bush 's attorneys claim the Constitution gives the President "inherent authority " as Commander in Chief to authorize unwarranted spying on Americans to protect our "national security ". Don 't bother looking. You won 't find that written in the Constitution.
"A state of war is not a blank check for the President when it comes to the rights of the nation 's citizens, " --Supreme Court Justice Sandra Day O 'Connor 's opinion in a case in which Bush tried to claim the same "inherent authority " to hold U.S. citizens without charge or trial."Big Brother in the form of an increasingly powerful government and in an increasingly powerful private sector will pile the records high with reasons why privacy should give way to national security, to law and order, to efficiency of operation, to scientific advancement and the like. " --Justice William O. Douglas"Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency. " --Justice Charles Evans Hughes
Bush also claims that when Congress authorized him to "use all necessary and appropriate force " against those responsible for the attacks of 9/11, they were really saying that he could ignore the law and spy on Americans without a warrant. Statements made at the time of the authorization dispute that claim:"In extending this broad authority to cover those 'planning, authorizing, committing, or aiding the attacks ' it should go without saying, however, that the resolution is directed only at using force abroad to combat acts of international terrorism. " --Senator Joe Biden (D-DE), Congressional Record, 9/14/01"The body of this resolution is appropriately limited to those entities involved in the attacks that occurred on September 11th ...It reiterates the existing constitutional powers of the President to take action to defend the United States, but provides no new or additional grant of powers to the President. " --Rep. James McGovern (D-MA), Congressional Record, 9/14/01
Tom Daschle, Senate Majority Leader at that time, has come forward to say:"I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance. " -- The Washington Post, 12/23/05
Mr. Daschle went on to explain, "Just before the Senate acted on this compromise resolution, the White House sought one last change .... This last-minute change would have given the president broad authority to exercise expansive powers not just overseas - where we all understood he wanted authority to act - but right here in the United States, potentially against American citizens. "
The Senate refused the request.
This makes it clear that Bush 's secret spying on Americans is not the result of some innocent misunderstanding or misinterpretation. The Bush Administration specifically asked for authority to use its expanded powers within the United States and Congress said "No ". The fact that Bush went ahead and authorized unwarranted spying on Americans should surprise no one. He has already managed to get way with secret arrests, secret detentions, secret trials using secret evidence, secret prisons, and secret torture --why not secret spying on Americans?
Bush has admitted to ignoring (breaking) the FISA law and vows to continue ignoring it as long as he is President of the United States. Now it is up to the Republican-controlled Congress to reassert its place as a coequal branch of government. Congress makes the laws. The President 's job is to enforce the laws --all the laws; not just the ones he likes.
There have been some encouraging signs. Senate Judiciary Committee Chairman Arlen Specter (R-PA) says he is "skeptical " of Bush 's claim of authority, and he plans to hold hearings. Senators Chuck Hagel (R-NE) and Olympia Snowe (R-ME) have requested a joint inquiry by the judiciary and intelligence committees.
"I took an oath of office to the Constitution. I didn 't take an oath of office to my party or to my president. " --Senator Chuck Hagel
If enough members of Congress remember that oath; there will be hearings, and Bush will finally be held accountable for his actions. If they fail to do that, Congress might as well crown him King and go home.