Security - What's New - Archive

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Do you have Faith in Committees? The Latest on Wiretapping

Should the government be allowed to listen in on our phone calls and read our emails in order to improve national security? Some suggest that there’s no reason to worry about wiretapping if you’re not doing anything wrong. Others argue that the Constitution protects Americans’ privacy for any reason and no reason at all, meaning whether you’re on the phone talking about terrorism or talking to your aunt Mildred about her peach pie recipe, your privacy is protected.

Main arguments

Against FISA

Since the nation learned of the Bush administration’s wiretapping program, two main arguments have emerged. Many believe that Bush’s wiretapping program violates the 1978 Foreign Intelligence Surveillance Act (FISA), which was created in the wake of surveillance abuses during the cold war and Vietnam War. The law requires the National Security Agency and the Federal Bureau of Investigation to get a warrant from a special court before placing an electronic wiretap.

The proceedings of this court, called a FISA court, are not available to the public for security reasons. Although the court rarely denies a warrant, Congress passed the law to ensure that a second branch of government was there to check executive power and prevent wiretapping abuses.

The Attorney General for the Bush administration, Alberto Gonzales, has argued that this review process is cumbersome and can take valuable time essential to "fighting a stateless, faceless enemy."

As Gonzales points out, the contemporary qualities of war are a consideration. Since FISA passed, the threat of war has changed considerably. Possible enemies have gone from over there to over here, battle is sporadic and unpredictable, and victims are usually civilians instead of soldiers. Danger can no longer be attributed to a foreign government or nation, but rather a stateless and mobile group or groups that refuse compromise.

Protection from a new kind of war

In defending the Bush administration surveillance program to the Senate Judiciary Committee, Gonzales explained that "the enemy is listening" and counter-surveillance is an "early warning system."

However, many committee members contended that fear was not a reason to avoid the law. Gonzales argued that the administration was not so much avoiding the 1978 law as following a different one: the 2001 congressional resolution that gave President Bush the authority "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States."

Defenders of the Bush administration argue that the 2001 congressional directive gave President Bush the power to do as he saw fit in order to fight Al Qaeda, including issuing wiretaps without a warrant.

What’s happened lately?

News of the wiretapping program left Americans arguing about privacy and security, but how has government responded?

So far, the Senate has created a new Intelligence subcommittee to investigate the wiretapping program. The subcommittee is chaired by Republican Pat Roberts of Kansas, a defender of the program. The subcommittee met for the first time on March 9, 2006 at the White House and plans to make a trip to the National Security Agency (NSA) to interview NSA officials who conduct the program. The House of Representatives is planning a similar subcommittee.

Democrats say that subcommittees are not enough. They want an investigation conducted by the full Senate Intelligence Committee. Their demands are reflected by legislation to be proposed by Arlen Specter, constitutional scholar and chairman of the Senate Judiciary Committee.

Specter’s bill would force judicial review of the NSA program and require the attorney general to get permission from the FISA court for any sort of surveillance program.

The court would hear the who, the what, the where, and the why of the program and decide if there is probable cause to authorize the surveillance. The attorney general also would have to notify minority members of the House and Senate intelligence committees every 45 days.

The Bush administration has resisted Specter’s bill and favors legislation proposed by Mike DeWine (R-Ohio). DeWine’s measure would change the laws to allow Bush’s program to continue, but would increase congressional oversight.

In the meantime, Specter plans to hold more Judiciary Committee hearings on the subject that will include more in-depth questioning of Attorney General Alberto Gonzales.

What do you think?

Are you willing to trade some privacy for security? Do you think the president should have the authority to watch and listen to U.S. communications during a time of war? What does defense consist of now that war is so different, so variable and abstract? Should modern, powerful forms of warfare (chemical, biological, nuclear) make a difference in this national discussion?

Your input matters

Only Congress can make a difference in presidential policy. Your representatives in Congress DO care what you think. Especially now -- 2006 is an election year and many representatives will be looking to reconnect with their constituents. Let your congressmen and women know what you think! Give your senators a piece of your mind! To find your reps, click here.

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Update Posted on: 3/10/2006