How Would a Patriot Act? Defending American Values from a President
Run Amok
by
David Gordon
by David Gordon
DIGG THIS
 How
Would a Patriot Act? Defending American Values from a President
Run Amok. By Glenn Greenwald. Working Assets Publishing,
2006. 128 pages.
In this remarkable
book, Glenn Greenwald solves a difficult problem. President Bush
has for several years authorized the National Security Agency to
wiretap telephones within the United States without a judicial warrant.
Doing so is illegal, but Bush claims that security against terrorism
requires it. Here our puzzle arises. The administration thinks that
certain wiretaps are necessary. But under existing law, it can readily
obtain a warrant from a special court. When warrants have been requested
from this court, they have never been denied. Why, then, do the
minions of the Bush administration decline to seek a warrant? The
answer cannot be that sudden emergency leaves no time to go to court,
since the law allows for an immediate wiretap so long as judicial
approval is secured a short time later.
Greenwald cogently
sketches the situation:
[P]rior to
the December 2005 disclosure that President Bush had violated
the law, no one ever suggested that the FISA [Foreign Intelligence
Surveillance Act] framework impeded necessary eavesdropping. If
anything, the FISA court had long been criticized … for being
too permissive, for allowing the government whatever eavesdropping
powers it requested. Indeed, its reputation for granting every
eavesdropping request made by the government is so widespread
that it has long been ridiculed as the "Rubber Stamp Court."
… The FISA court approved every single request [out of 13,102
submitted between 1978 and 2001] and only modified the requested
warrant on a grand total of two occasions. (p. 28)
 Why
then did the Administration bypass the court? Greenwald responds:
As Congress
devised the law, the FISA court plays two critical, independent
functions – not just warrant approval but also, more critically,
judicial oversight. FISA's truly meaningful check on abuse in
the eavesdropping process is that the president is prevented from
engaging in improper eavesdropping because he knows that every
instance of eavesdropping he orders will be known to a federal
judge – a high level judicial officer who is not subject
to the president's authority … it is precisely that safeguard
which President Bush simply abolished by fiat. In effect, President
Bush changed the law all by himself, replacing the federal judges
with his own employees at the NSA [National Security Agency] and
abolishing the approval and warrant process entirely. (p. 37)
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the rest of the article
Copyright ©
2007 Ludwig von Mises Institute
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