Bushâ??s 'Probably Not a Terrorist Surveillance Program'

Bushâ??s 'Probably Not a Terrorist Surveillance Program'

[align=center]by Thomas R. Eddlem[/align]

President George 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."

Senior Bush Administration officials have spent the past couple of weeks defending the National Security Agencyâ??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 "State of the Union" address: "If there are people inside our country who are talking with al Qaeda, we want to know about it."

Iâ??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. Thereâ??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 doesnâ??t slow down the NSA one bit to get the warrant.

Unless, of course, the NSA request for a warrant would be denied by the courts. And thatâ??s where it becomes interesting. The constitutional standard for issuing a search warrant is defined by the fourth amendment, which states:
"The 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."

The constitutional standard for issuing a warrant for a particular search involves "probable cause, supported by an oath or affirmation." If NSA searches donâ??t involve probable cause, then they would be denied a warrant. And if they are tapping Americanâ??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 Surveillance Program."

Note that the President no longer talks about warrants, though he told the American people many 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 administrationâ??s vocabulary when discussing the NSA program.

Bush claims the constitutional power to conduct warrantless searches flows from his "commander-in-chief" 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.

Interestingly, Bush has campaigned vigorously for a renewal of the Patriot Act, which his 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 Bushâ??s warrantless program would not meet the Constitutional threshold for obtaining a search warrant: "probable 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 â?? by definition â?? probably law-abiding citizens.

The "Probably Not a Terrorist Surveillance Program" is the cornerstone of what is wrong with Bushâ??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 Bushâ??s past statements that he doesnâ??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
"â?¦ the idea of focusing on one person is â?? really indicates to me people don't understand the scope of the mission. Terror is bigger than one person. And he's just â?? 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 â?? 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 â?? 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 with you."

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 Bushâ??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.

Bushâ??s so-called "War on Terrorism" is a phony war, and not just because Congress â?? the only body authorized by the U.S. constitution to declare war â?? didnâ??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.

Americanâ??s should inform their congressman that Bushâ??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 Surveillance Program."
[align=right]February 3, 2006[/align]