Bush Defends By-Passing Courts, Asserts Wiretaps Are Legal

In his press conference this morning, President Bush peppered his remarks with 9-11 (seven references in 17 paragraphs in the press statement) and the cloak of the 9-11 Commission while asserting that the National Security Agency wiretapping reported by the New York Times last week was constitutional. Moreover, he insisted he would continue the non-court-sanctioned program indefinitely: "so long as the nation faces the continuing threat of an enemy that wants to kill American citizens."

Wiretapping in the United States requires a court order. According to a 2005 decision in the 9th Circuit Court of Appeals:

[1] When Congress enacted the wiretapping provisions of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C.§§ 2510-2522, it intended to “make doubly sure that the statutory authority [for wiretaps] be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral communications.” United States v. Giordano, 416 U.S. 505, 515 (1974). Narrow construction of the wiretapping provisions furthers Congress’ dual purposes for the act of “ ‘(1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.’ ” Gelbard v. United States, 408 U.S. 41, 48 (1972) (quoting S. Rep. No. 90-1097, at 66 (1968), reprinted in 1968 U.S.C.C.A.N. 2122, 2153).

In response to a question about why the Administration failed to invoke the Foreign Intelligence Surveillance Act (FISA) before conducting the wiretaps, Bush said, "FISA is for long-term monitoring." However, in his prepared remarks, he admitted that the non-court sanctioned monitoring has been ongoing since late September 2001 -- more than four years. With no evidence but his assertion, Bush said, "I want to make clear to the people listening that this program is limited in nature to those that are known al Qaeda ties and/or affiliates."

The Electronic Freedom Foundation outlines seven points that the Supreme Court has mandated for electronic surveillance to be constitutional and provides additional detail on FISA, which the Administration ignored:

(1) a showing of probable cause that a particular offense has been or is about to be committed; (2) the applicant must describe with particularity the conversations to be intercepted; (3) the surveillance must be for a specific, limited period of time in order to minimize the invasion of privacy (the N.Y. law authorized two months of surveillance at a time); (4) there must be continuing probable cause showings for the surveillance to continue beyond the original termination date; (5) the surveillance must end once the conversation sought is seized; (6) notice must be given unless there is an adequate showing of exigency; and (7) a return on the warrant is required so that the court may oversee and limit the use of the intercepted conversations.

Indeed, the Court said that if "neither a warrant nor a statute authorizing eavesdropping can be drawn so as to meet the Fourth Amendment's requirements . . . then the fruits of eavesdropping devices are barred under the Amendment." Id., at 63.

Where intelligence operations are concerned, however, the bounds of the Fourth Amendment are less clear than they are for ordinary criminal investigations. FISA creates a special court and legal regime for counterintelligence surveillance orders.

Executive Order 12,333 (1981) provides the general framework for U.S. intelligence activities, and it also addresses electronic surveillance. "[A]gencies are not authorized to use such techniques as electronic surveillance, unconsented physical searches, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the agency concerned and approved by the Attorney General." EO 12,333, para. 2.4. Dep't. of Defense (DOD) Directive 5240.1-R implements FISA and EO 12,333 within DOD. These authorities govern the collection of intelligence by the U.S. government against United States persons, whether they are located within the United States or outside the United States.

In an orchestrated series of events designed to counter Senate filibuster of Patriot Act renewal, earlier on Monday, "Attorney General Alberto Gonzales said Congress had given Bush authority to spy on suspected terrorists in this country in legislation passed after the attacks of Sept. 11, 2001."

Bush defended the use of pre-war intelligence to build American support for a war in Iraq by almost conceding that there were questions:

Q. But, with respect, the intelligence helped you build public support for the war. And so I wonder if now, as you look back, if you look at that intelligence and feel that the intelligence and your use of it might bear some responsibility for the current divisions in the country over the war, and what can you do about it?

THE PRESIDENT: I appreciate that. First of all, I can understand why people were -- well, wait a minute. Everybody thought there was weapons of mass destruction, and there weren't any. I felt the same way... there was universal -- there was a universal feeling that he had weapons of mass destruction.

Reporters continued to question him about the use of non-court-sanctioned wiretaps:

Q. According to FISA's own records, it's received nearly 19,000 requests for wiretaps or search warrants since 1979, rejected just five of them. It also operates in secret, so security shouldn't be a concern, and it can be applied retroactively. Given such a powerful tool of law enforcement is at your disposal, sir, why did you see fit to sidetrack that process?

THE PRESIDENT: We used the process to monitor. But also, this is a different -- a different era, a different war, Stretch. So what we're -- people are changing phone numbers and phone calls, and they're moving quick. And we've got to be able to detect and prevent. I keep saying that, but this is a -- it requires quick action.

And without revealing the operating details of our program, I just want to assure the American people that, one, I've got the authority to do this; two, it is a necessary part of my job to protect you; and, three, we're guarding your civil liberties. And we're guarding the civil liberties by monitoring the program on a regular basis, by having the folks at NSA, the legal team, as well as the inspector general, monitor the program, and we're briefing Congress. This is a part of our effort to protect the American people. The American people expect us to protect them and protect their civil liberties. I'm going to do that. That's my job, and I'm going to continue doing my job.

And although the President asserts that only known terrorist are being monitored, the following example contradicts that assertion. He suggested that this non-court sanctioned wiretap process could have prevented 9-11, as though these two individuals were being closely watched by intelligence agencies.

I mentioned in my radio address -- my live TV radio address -- that there was two killers in San Diego making phone calls prior to the September the 11th attacks. Had this program been in place then, it is more likely we would have been able to catch them. But they're making phone calls from the United States, overseas, talking about -- who knows what they're talking about, but they ended up killing -- being a part of the team that killed 3,000 Americans. And so -- I forgot what got me on the subject, but nevertheless I'm going to -- we're doing the right thing.

See Bush defends domestic eavesdropping, Iraq war, Bush defends spying programme, Bush Promises to Continue Secret Eavesdropping, Bush Says U.S. Spy Program Is Legal and Essential, Bush Vows to Continue Domestic Surveillance, Bush vows more eavesdropping

Technorati Profile
Technorati tags: Patriot Act, Politics
gada.be tags: Patriot Act , Politics