Bush and senior members of his administration call it their "Terrorist
Surveillance Program," but the NSA warrantless wiretapping
program on American citizens is more accurately titled the "Probably
Not a Terrorist Surveillance Program."
Administration officials have spent the past couple of weeks defending
the National Security Agency's program of spying on the private
telephone calls of American citizens without seeking the constitutionally-required
court warrant using talking points such as Bush uttered during his
of the Union" address: "If there are people inside
our country who are talking with al Qaeda, we want to know about
I've got no
problem with tapping the calls of people who are al Qaeda, and Congress
authorized the President to do this under the 1978 Foreign Intelligence
Surveillance Act (FISA). All that Bush has to do is follow the same
Constitution he swore an oath to "preserve, protect and defend"
by seeking a warrant. There's even an emergency provision in FISA
that lets the President tap a phone call before getting a
warrant, which is similar to the common law doctrine of "hot
pursuit" with regard to warrants. If all the President has
to do is get a warrant within 72 hours after conducting the
phone tap, it doesn't slow down the NSA one bit to get the warrant.
course, the NSA request for a warrant would be denied by the courts.
And that's where it becomes interesting. The constitutional standard
for issuing a search warrant is defined by the fourth
amendment, which states:
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."
standard for issuing a warrant for a particular search involves
"probable cause, supported by an oath or affirmation."
If NSA searches don't involve probable cause, then they would be
denied a warrant. And if they are tapping American's phone calls
under this warrantless program, they are tapping the phones of people
who, by definition, are probably not terrorists. Thus, the most
appropriate name for the program is the "Probably Not a Terrorist
Note that the
President no longer talks about warrants, though he told the American
times that "Law
enforcement officers need a federal judge’s permission to wiretap
a foreign terrorist’s phone, or to track his calls, or to search
his property." The word "warrant" is no longer
in the administration's vocabulary when discussing the NSA program.
the constitutional power to conduct warrantless searches flows from
powers under Article Two of the U.S. constitution. But even
if Article Two gave him that power, the Fourth Amendment (which
amended the Constitution) has taken any claim of legitimacy
from that power.
Bush has campaigned vigorously for a renewal of the Patriot Act,
own website claims requires a warrant for a wiretap. If he already
possesses the "constitutional power" to conduct warrantless
wiretaps, as he claims, why would he need Congress to give him the
power to obtain wiretaps through a warrant?
Again, I am
reduced to concluding that Bush's warrantless program would not
meet the Constitutional threshold for obtaining a search warrant:
cause, supported by oath or affirmation." And I am led
to conclude that he is tapping the phones of Americans, every one
of whom are – by definition – probably law-abiding citizens.
Not a Terrorist Surveillance Program" is the cornerstone of
what is wrong with Bush's so-called "War on Terrorism."
The fact that we are spending extraordinary resources on an unconstitutional
spying program that by definition is looking for people who are
probably not terrorists speaks for itself. But it is consistent
with Bush's past statements that he doesn't intend to focus upon
the actual people who brought the 9/11 terror to the United States,
such as Osama bin Ladin. In a March
13, 2002 press conference, Bush explained that
idea of focusing on one person is – really indicates
to me people don’t understand the scope of the mission. Terror
is bigger than one person. And he’s just – he’s
a person who’s now been marginalized. His network,
his host government has been destroyed. He’s the ultimate
parasite who found weakness, exploited it, and met his match. He
is – as I mentioned in my speech, I do
mention the fact that this is a fellow who is willing to commit
youngsters to their death and he, himself, tries to hide – if,
in fact, he’s hiding at all. So I don’t know where he is. You
know, I just don’t spend that much time on him, Kelly, to be honest
Bush is no
longer interested in actually bringing the real killers in 9/11
to justice. Osama bin Ladin, the mastermind of the 9/11 attacks,
remains a free man four and a half years after the event. But Osama
remains a side issue to Bush's larger "war," where we
occupy Iraq, bomb Pakistan and threaten Iran. And this is a war
that Bush and his aides
concede will last a generation.
"War on Terrorism" is a phony war, and not just because
Congress — the
only body authorized by the U.S. constitution to declare war
— didn't declare it. Presidents are always declaring "war"
when they want to appear to be making progress on a public concern
without actually doing anything. This explains the phony wars on
drugs, crime, and poverty. Whenever a politician starts talking
about wars, look out for your disappearing freedoms.
should inform their congressman that Bush's "War on Terror"
is not really a war on terror and his "Terrorist Surveillance
program is more accurately called the "Probably Not a Terrorist
[send him mail] is
a native of the Boston area of Massachusetts and a graduate of Stonehill
College. He is a radio
talk show host in Southeastern Massachusetts and is a frequent
contributor to The