NSA’s Warrantless Wiretapping is Wrong

By Alan Stewart Carl | Related entries in The War On Terrorism

After many weeks of debate concerning the NSA’s warrantless wiretapping, I think the real facts have finally squirmed their way through the partisan spin. And I think the truth is: the program is wrong.

Now, I’m not a lawyer and so I’ll let lawyers hash out whether or not the program is or is not technically legal. But clearly it exists in one of those problematic grey areas. Proponents of the program are adamant that the President absolutely must have the authority to operate in legally grey areas in order to effectively wage this war. Opponents see it as a dangerous overreach of power.

If this were 2002 or probably even 2003, I would be firmly on the side of the proponents. But it’s 2006. We’ve been fighting this war for 4-and-a-half years and clearly could be fighting it for decades more. At some point we have to stop permitting the president to operate unilaterally and start drawing lines we can all agree upon.

I do believe that President Bush has used this program out of a sincere desire to keep us safe. But what about the next president? Or the one after that? The longer we permit our presidents to use national security as an excuse to freely operate in those “grey areas,� the more we are at risk of those grey areas expanding and the rights of innocent Americans being violated.

This is not a war that will end soon. Our national security will be at risk for as long as any of us can see. Now is the time to decide what tools we need to protect ourselves and what rights we hold to be more vital than temporary security.

One of those rights is enshrined in the Bill of Rights. The Fourth Amendment guarantees that our government must have probable cause before conducting searches and seizures. Unless a warrant is issued, we have the right to be secure and left alone by our government.

That is a fundamental right. There may have been good reasons to skirt the Fourth Amendment in the aftermath of September 11th, but we simply can’t continue to allow the president to unilaterally decided which rights are sacrosanct and which rights are acceptable to violate. That is just not a long-term solution.

President Bush and his supporters need to stop spinning, stop creating new rationales and admit that the NSA’s program needs congressional authorization to continue and needs to be conducted through the FISA court system. To take any other position is to support an untenable and ultimately dangerous view of presidential power.

We must draw lines. Otherwise we risk the slow but inevitable erosion of our most important rights.


This entry was posted on Friday, January 27th, 2006 and is filed under The War On Terrorism. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

29 Responses to “NSA’s Warrantless Wiretapping is Wrong”

  1. Jimmy the Dhimmi Says:

    The Fourth Amendment guarantees that our government must have probable cause before conducting searches and seizures. Unless a warrant is issued, we have the right to be secure and left alone by our government.

    Why is it not probable cause to wiretap an American citizen if he is recieving calls from terrorists overseas?

    If this were 2002 or probably even 2003, I would be firmly on the side of the proponents. But it’s 2006. We’ve been fighting this war for 4-and-a-half years and clearly could be fighting it for decades more.

    So it was constitutional to wiretap without a warrant 3 or 4 years ago, but its not constitutional now? Where in a constitution does it say the statute on searches without warrants is limited to only 2 years after a war begins?

  2. Alan Stewart Carl Says:

    Jimmy,

    Probable cause is decided by a court, not the President. That’s how it’s always worked. It is probable cause to wiretap an American communicating with terrorists, but it has to go through FISA.

    It wouldn’t have been constitutional 2 or 3 years ago either, but it would have been understandable. I’m not an absolutist, I understand that extraordinary times do require extraordinary meassures. We let our Presidents assume greater powers during war because it’s hard to win without doing so.

    But we need to recognize that this war could be going on for many more decades. At some point we have to stop and reasses how we’re doing things. It’s past time to do that. We can’t have every president for the next 20-30 years doing whatever they please because “we’re at war.” It’s not a sustainable or safe option.

  3. Jimmy the Dhimmi Says:

    Probable cause is decided by a court, not the President. That’s how it’s always worked.

    Forgive me Alan, but that is utterly not true. Probable cause is always a judgement of the arresting officer, or law enforcement agency. NOT the courts, thats the whole point.
    If a cop sees you swerving your car, and smells alcohol on your breath as you muble nonsense to him, he can arrest you without a warrant on the spot – probable cause. If the officer had to get a court order to arrest you, that could take a day or two, (months in my county); by then you could have sped off into the night and smashed into somebody.
    Then the cop would have to wait another day or two for the judge to review the accident report before he could serve a warrant for your arrest.

    We can’t have every president for the next 20-30 years doing whatever they please because “we’re at war.�

    I don’t think you realize the enemy we are facing. These arent docile little pre-teen anarchists in San Francisco. 2 or 3 years vs 20 years, no one can determine how strong the Islamist movement will be then. Maybe the threats on this country will be worse than 9/11 and the “war” will be at your front step.
    The executive branch is burdened with the duty of preventing that scenario. There needs to be an ex-post-facto review process by an secret judiciary after the fact, and from what I understand, there is something like that with this program; however, we can’t wait until you crash your car into an old lady before we pull you over for “suspicion of drunk driving” without a warrant.

  4. Meredith Says:

    If an American is receiving calls from terrorists from overseas, and you could prove that is true, using verifiable facts, a judge would absolutely issue a warrant, but the whole point is that you have to explain the circumstances and info you have that leads you to believe that an American is receiving calls from terrorists overseas. You can’t just say that and have it be accepted as fact. And, that’s what courts are for, as Alan says.

    I am an attorney, and I believe in our legal system, even though it is certainly not without flaws. The whole 4th Amendment search warrant thing, however, is not that difficult of a process – trust me. In my city, I know that there are certain judges who would be more likely to sign off on flimsy search warrants than others. Of course, if a defendant believes that the warrant was inadequate, he may challenge it, and there is a process by which another judge can review the decision to make sure it was a good warrant.

    The point is, you can get a warrant pretty easily if you’ve got anything remotely close to probable cause. Knowing this, it makes me really suspicious of anyone who would conduct a warrantless search because I would immediately assume it was suspect. In the world of local criminal law, that would be the assumption if cops conducted a warrantless search. By the way, there are exceptions for getting warrants in certain situations – namely exigent circumstances, basically where shit is going down right away and you don’t have time to go get a warrant. Obviously, I’m not using legal jargon here, but you get the idea. I believe there are similar provisions in FISA which allow for retroactive warrants, etc.

    The real question should be: Why not just get one??? It just ain’t that friggin’ hard.

  5. Meredith Says:

    Jimmi,

    The courts ABSOLUTELY DO decide whether there was probable cause. As I said above, if there are exigent circumstances (your scenario of drunk driving is one of those situations) a law enforcement officer may make an arrest, but that does not mean there was probable cause. Later on, if the defendant challenges the arrest, the state will have to prove that there was probable cause. Often these types of cases are thrown out because the officer did not meet those requirements.

  6. Joshua Says:

    Alan wrote:

    But we need to recognize that this war could be going on for many more decades. At some point we have to stop and reasses how we’re doing things.

    I’ve made comments to this effect on Donklephant in the past. It should also be kept in mind that counterterrorism is just the tip of the iceberg, as terrorism is just one of many methods employed by Islamic supremacists to gain power worldwide. Would the American people support a truly domestic surveillance program (i.e. monitoring communications even entirely within our borders) if the Bush or a future administration became convinced that it was necessary? What about, say, curtailing freedom of speech and/or religion for American Muslims, in order to prevent the rise of a domestic Islamist political movement? And even if we wouldn’t support such things now, might another major attack on our soil change our minds?

    In a war as long as this one is likely to last, whatever wartime sacrifices we submit to cannot be regarded as temporary measures as they were in previous wars. So, even before we decide which of our freedoms we are willing to lay down on a long-term basis, we also need to be sure that doing so is even really necessary. It may not surprise you to learn that now there’s even a blog devoted to that question. Agree with it or not, it’s definitely worth checking out.

  7. Alan Stewart Carl Says:

    Jimmy,

    Your probable cause example is flawed. The 4th Amendment protects against unlawful searches and seizures (it says nothing about drunk driving). Sure a cop can pull you over for being drunk and haul you to jail. But if he wants to search your trunk, he has to have a warrant.

    Wiretapping is searching and seizing and, as such, it requires a warrant.

    Secondly, I realize I haven’t posted much here, but if you were familiar with any of my other writings you would know that I am a strong proponent of fighting this war aggressively–I guarantee we agree much more than we disagree. I fully understand the brutal nature of the enemy. What I don’t understand is how this warrantless wiretapping program is the only way we can get the information we need. Can’t we go through the FISA system. And, if the process needs to be expediated, can’t we do that too?

    And, no, there was no ex-post-facto review in these cases. FISA actually allows for that (up to 72 hours after the search) but the adminstration chose not to go that route.

    I am profoundly uncomfortable with leaving these grey areas completely up to the president to interpret. We have a balance of powers for a reason and we should use them as intended. I’m sure the work the NSA has been doing has been vital. But I’m sure they can continue that work without having to abandon the warrant process which is enshrined in the constitution.

  8. Jimmy the Dummy Says:

    Courts no decide probable cause. Bush do.

  9. Justin Gardner Says:

    This is a great debate. I hope you’ll ignore this last “trollish” comment Jimmy and continue it in the spirit of this site.

  10. Jimmy the Dhimmi Says:

    I am profoundly uncomfortable with leaving these grey areas completely up to the president to interpret

    I am with you on that and we probably do agree more than disagree. Consider that the survailence requires sifting through huge amounts of Data on the fly, where you cannot risk missing a single second of a call made to a terrorist; and also that this is a national security issue so no information about anything thats going on can ever get out to the public. Even if a mistake is made, and the courts decide the victim could sue, then the whole project could be compramised if the government’s methods of survaillence were revealled in court.

    If the records of the survailence are being destroyed by the executive branch so that no one will ever know what happened at any time in the future, that would be a travesty. Maybe I misunderstood the attourney general, but I vaguely recall he adressed that point in a press conference.

    A cop can search the trunk of a car you pulled over if it is deemed “reasonable” by the officer (i know its rare); Just consider the fact of pulling you over as a form survaillence. You can charge the cop with unreasonable search and seizure if he pulls you over for no reason (call Al Sharpton).

    This is a grey area, and it all comes down to a matter of trust in the social contract, and the necessity to defeat the enemy. Will the president abuse his power and spy on you because you download porn?

    That’s the reason why republicans tend to back the bresident on this issue in the polls. They voted for him so they trust him more. Also, a lot of democrats seem to believe terrorism is like gambling or prostitution (call John Kerry), or is not a threat at all (call Michael Moore).

  11. DosPeros Says:

    The constitutional jurisprudence of the 4th Amendment is the “reasonable expectation of privacy” standard. The argument against e-mail being protected by the 4th Amendment is that since an e-mail message necessarily hits a 3rd party to the conversation (the ISP) then there is no reasonable expectation of privacy. I think it is a weak argument, but there is some logic to it. I see the same argument potentially with cell phones — does anyone know how exactly these messages were “intercepted”? What is the technology involved? Meredith, what is the holding in Katz? Quick-hurry-faster..

  12. Jeff Says:

    Katz:

    Justice Harlan joined the opinion of the Court in Katz, but also wrote a concurring opinion in which he amplified upon the test set forth by the Court for determining whether a ”search” has occurred. He concluded that ”there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable.”

  13. DosPeros Says:

    Oh my Brokeback Mountain! I’m in love with Jeff.

  14. Justin Gardner Says:

    The constitutional jurisprudence of the 4th Amendment is the “reasonable expectation of privacy� standard. The argument against e-mail being protected by the 4th Amendment is that since an e-mail message necessarily hits a 3rd party to the conversation (the ISP) then there is no reasonable expectation of privacy. I think it is a weak argument, but there is some logic to it.

    Then this “logic” would be true for nearly all communications that are facilitated through technology. You’re right, it’s a weak argument that is merely made to subvert our privacy. Unfortunately, this administration has made it a practice to find a weak argument around a certain right and then say, “well, some say…” Ugh.

  15. Jimmy the Dhimmi Says:

    Did someone take my post down? that “Jimmy the Dummy” guy wasn’t me!

  16. Kilroy Says:

    Great debate. I am not a lawyer. My perspective is more historical. As compared to the death toll, sacrifice and time frame of WWII, Should’nt we be more serious about engaging the entire society to victory as opposed to extending the powers (possibly forever) of one man/position ? I agree with Alan, by extending the Executives power, the real net result is a depreciation of our privacy. This may or may not be legal, until I’m asked to plant a victory garden, I’m very uncomfortable with it.

  17. Tully Says:

    The Fourth Amendment guarantees that our government must have probable cause before conducting searches and seizures. Unless a warrant is issued, we have the right to be secure and left alone by our government.

    Not so. The 4th protects against “unreasonable” searches and seizures. There are numerous exceptions where a search lacking a warrant is “reasonable.” Communications facilitated through technology have different expectations of privacy, depending on the technology used and the type of communications. Using your cell phone (which broadcasts a radio signal that can be listened to by anyone with the equipment) is not the same thing as using a solid cable connection.

  18. Greg Prince’s Blog » Politicizing politization Says:

    [...] Donkelphant [...]

  19. The Disenfranchised Voter Says:

    Perhaps the supporters of the program claiming that probable cause doesn’t apply to searches should actually read the 4th amendment…

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

  20. DosPeros Says:

    Yup, that clears it up.

  21. Tom Strong Says:

    At some point we have to stop permitting the president to operate unilaterally and start drawing lines we can all agree upon.

    This is, I think a key point and deserves more attention. Getting too hung up on the legality or illegality of the NSA program prevents the nation from moving on to the next step, which is establishing clear rule of law for the struggle against terrorism. We can’t do this without clear rule of law; it is, in fact, rank hypocrisy to try. In this sense, the issue is much bigger than Bush. We have to be able to answer the question: how does a liberal democratic nation effectively prevent and fight terrorism without forsaking its core values?

    The only thing that offends me about the Bush Administration in all this is their continual efforts to try and expand presidential authority without judicial or congressional oversight. It’s a cliche, but checks and balances between the three branches of government are the core value in our Constitution, and utterly essential to maintaining our rule of law. For the President to be continually working to undermine these, without clearly stating what checks and balances he considers to be acceptable in the struggle against terrorism, is very alarming.

  22. Brian in MA Says:

    Insofar as NSA:

    Bush has stated he is keeping tabs on ONLY international calls with ONLY suspected terrorists at one end of the line. Now, you can either be in the “Bush lied” camp or you can accept that Bush has no reason to lie in this matter.

    In short:

    Place to be searched: Phone numbers called by Abu Musab al-Zarquawi and Osama Bin Laden (and any and all related minions)
    Probable Cause: Terrorists using Cell Phones as a Communication Network.
    Persons or things to be seized: Information regarding these terrorists and their lackeys, hopefully leading to the seizure of the terrorists themselves.

    I’m not calling Abu or Osama, and quite frankly, if Big Brother is listening in on my convo and I don’t know, I fail to see how my “privacy” has been breached. They can’t use the info to arrest me on civillian charges, and if things I or the person on the other end say aren’t relevant, the Feds don’t care. So some Fed guy knows I’m single and available, big deal. My biggest problem is getting people on cell phones to SHUT UP about their Private lives, not government surveillance of calls.

    On Presidential Powers: The President’s Article II power sould only be limited to whatever it takes to ensure national security from terrorists, not to prosecute people for random infranctions overheard on cell phones. The only thing that would scare me is if some Liberal Democrat was in office. Those guys LAUDED when Newt Gingrich’s conversation got spied on by “grandparents out Christmas shopping who just HAPPENED to have a cell phone signal reciever and a tape recorder handy”, these days I don’t trust those super-left nutbars as far as I can throw them.

  23. Brouhaha Says:

    Brian, you just don’t get it.

    You make great arguments why (assuming Bush is telling the truth) probable cause probably exists in these terrorism cases. Fine.

    But the system of government we have extablished under the Consitution, with its vital checks and balances, require those arguments be made to the judiciary… just to make sure. Our Constitution does not require us to “trust” the President or any law enforcement officer. With narrow exceptions, a judge must validate the existence of probably cause to prevent executive overreaching. In this case, FISA was virtually a rubber stamp (which could even be after the fact) which makes this situation both puzzling and maddening.

    The truth is that this is an unnecessary Constitutional crisis caused by Cheney and his ideological ilk. These men did not go to FISA or try to fix FISA because they could not care care less about FISA. Instead, they are carrying a 30 year old grudge which causes them to stubbornly refuse to cede any of what they view as the unilateral power of the Executive Branch at the expense of Congress and the Judiciary.

    http://brouhaha.blogs.com/brouhaha/2006/02/docs_ford_admin.html

    Unless you understand that, you’ll never understand this debate. Many Republicans agree with Democrats that the pernicious justifications given by Bush and Gonzalez do not hold water and, if allowed to stand, will dangerously erode our democracy.

  24. blah blah Says:

    president has the right to defend the country.

  25. Bill Says:

    My problem with warrantless wiretapping is actually with the proponents of it who all want to say “if an American is receiving a call from terrorists they should be wiretapped.” I disagree. If an American is being called by terrorists, they should be imprisoned for TREASON!

    Now, just because someone receives a call from somewhere outside of the U.S., that does not directly imply it is from a terrorist. If I have a significant other living overseas, I may want to have quite an erotic conversation going on, but should I be subjected to “Big Brother” joining in with us??? What about legal immigrants who have family overseas? If they have American citizenship, don’t they have equal 4th ammendment rights?

    Once we allow warrantless wiretaps, what happens when we discover most of the terrorists are not overseas? They are already here. Hamas has a big population here. So do we now wiretap everybody because they might receive a call from a terrorist? What ever happened to being presumed innocent until proven guilty?

    What people need to understand is, once we take away our freedoms in the name of “fighting the war on terror,” terrorists have won! That is precisely what they want to do – get rid of freedom.

    Don’t get me wrong, I am all for the war on terror and I think we are doing the right thing by trying to rid it from the world. I just think it should be done legally and without taking away our constitutional rights.

  26. Bill Says:

    Oh, and I forgot to mention… what state has laws against the number of cell phones one can possess? I’m interested in going cell phone hunting and I don’t want to go over my limit!

    :)

  27. Daren Says:

    | president has the right to defend the country.

    True. But, We have an obligation to question the legitimacy of his actions.

  28. Josh Says:

    whatever

  29. Bob Diamond Says:

    After the recent developments over at Pakistan, I wonder how this issue will progress from hereon….

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