The Administration is Playing a Shell Game With Its Unconstitutional Warrantless Wiretapping

Mogulescu
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01.19.2007
The Administration is Playing a Shell Game With Its Unconstitutional Warrantless Wiretapping

The Bush administration's warrantless wiretapping program has represented one of its most egregious claims of unfettered executive power and a threat to our constitutional democracy. It spit in the face of both the FISA Act requiring warrants for such wiretapping and the constitutional protections of free speech, privacy and separation of powers.

Before the election, the Bush administration claimed that this program was vital to protect the security of the nation and attacked critics as being soft in the war on terror.
Recently, a Federal District Court ruled the program illegal and unconstitutional. A Federal Appeals court is set to review the case in two weeks and could issue a precedential opinion holding the program illegal, a decision that could only be overturned by the Supreme Court. A new Democratic Congress is likely to hold hearings with the possibility of legislation specifically requiring case by case warrants.

In that context, the Justice Department suddenly announced on Wednesday that it had received sanction for such wiretapping from a single FISA judge in a secret proceeding. Questioned by Senators on Thursday, Attorney General Gonzales refused to reveal whether the FISA judge had approved only a specific wiretap or had approved a wider program of wiretapping. Although the FISA judge offered to supply her decision to the Senate, Gonzales refused, claiming the decision was classified.

This is part of the Bush administration's continuing shell game to keep its unprecedented and unconstitutional claims of executive power away from oversight by Congress or review by the normal Federal court system.

On the eve of the Supreme Court's review of the case of Jose Padilla, Padilla was transferred to the criminal system, thus preventing a Supreme Court ruling. After the Supreme Court ruled in Hamdi v. Rumsfeld that an enemy combatant has the right to challenge his detention in court, the administration freed Hamdi and sent him to Saudi Arabia rather than face further judicial proceedings. In a much quoted passage from her decision in the Hamdi case, Justice Sandra Day O'Conner stated, "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens."

In connection with the NSA wiretapping case, the administration still maintains that it is free to operate without court approval and had referred the case to the secret FISA judge on a strictly voluntary basis. President Bush denied that there had been any change in the NSA program except that it had been blessed by the FISA judge. According to Bush, "the reason it's important that they [the FISA judge] verify the legalities of the program is it means its going to extend, make it extend beyond my presidency." In other words, Bush wants to make his unprecedented claims of executive power permanent.

It is essential that the Judiciary Committee continue to aggressively pursue this matter in spite of Secretary Gonzales's stonewalling. Senators must insist that they be provided with all relevant information. If necessary, Congress must pass new legislation spelling out the exact procedures the administration must follow to obtain a warrant. It is equally important that the Federal Appeals Court hear the case, and not find it moot, until it can determine the specifics of the administration's procedures and the degree to which the administration continues to maintain the right to wiretap without a case by case warrant. A secret ruling from a single FISA judge in a secret proceeding that the administration considers optional gives little comfort that the Bush administration will obey the law. An opinion of a Federal Appeals Court is a far greater protection of Americans' rights.

The Bush administration has over and over threatened our constitutional democracy with claims of unfettered executive power--the future of the country demands that it be stopped.