Washington Now Has the Right to Wiretap Your Phone at Will
Nearly 30 years ago, Congress passed a law intended to prevent the U.S. president from wiretapping in the United States without a warrant.
That law, the Foreign Intelligence Surveillance Act (FISA) is supposed to be the exclusive means by which electronic surveillance may be conducted on U.S. residents in intelligence or national security investigations. But last week, the 6th U.S. Circuit Court of Appeals rejected the plain meaning of the FISA statute and upheld the president's authority to order warrantless surveillance of U.S. residents.
When the president seeks a wiretap under FISA, he must apply to a secret court created under FISA. Since 1979, this court has authorized more than 20,000 wiretaps, rejecting only a handful of applications. In emergencies, the president can authorize immediate wiretaps, as long as he promptly seeks authorization from the secret court.
Apparently, these minimal requirements are too onerous for President George W. Bush. In 2002, Bush signed a secret executive order giving America's largest intelligence agency, the National Security Administration (NSA), the authority to engage in warrantless monitoring of international phone calls and emails involving U.S. persons suspected of having terrorist links.
This "Terrorist Surveillance Program" is plainly illegal under the FISA statute, violations of which are punishable by a five-year prison sentence. Bush claims that the president has the inherent authority to override any statute if the U.S. national interest requires that he do so.
Why does President Bush want to avoid the minimal due process requirements of FISA? Many experts believe it's because the NSA is actually monitoring all international telephone calls, not just those with alleged terrorist links.
And last week, in a 2-1 decision, the court ruled that the American Civil Liberties Union, which filed the lawsuit, had no right to sue the government because it couldn't prove its communications had been monitored under the program.
In other words, the government won't tell you whether you have been wiretapped because it's secret. And unless you know you've been wiretapped, you can't challenge that program.