How Would a Patriot Act? Defending American Values from a President Run Amok


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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December 4, 2007