Annual Essay Contest

In response to the September 11^th, 2001 terrorist attacks, many politicians, including President George W. Bush, had their eyes opened to the need to protect America from terrorism. Shortly after the attacks, President Bush authorized a surveillance program that allowed the National Security Agency (NSA) to intercept international communications without a warrant when one of the parties involved was a suspected terrorist.  In order to fully understand and examine the issue, current laws on the issue as well as the Constitutionality of the programs must be examined first.  Second, it is important to take a look at history and how other presidents have acted in times of war or national crisis. Lastly, the inconsistency of many of his opponents who expected the President to stop the 9/11 attacks, yet now are saying that his policy of spying on terrorists is illegal, must be exposed.  This information and analysis will prove that what the President authorized is legal and necessary for America's national security in the post-September 11^th world.

When he took his oath of office, George W. Bush swore to "Preserve, protect, and defend the Constitution of the United States".  In Article II of the United States Constitution, it says "The President shall be Commander in Chief of the Army and Navy of the United States".  These are pretty broad definitions, and certainly imply that the President has the power to authorize a spying program where at least one of the parties is a suspected terrorist calling from outside of the country.  Perhaps the most supportive piece of evidence for the legality of the NSA spying program is an excerpt from the Authorization for Use of Military Force bill passed by Congress one week after the attacks on America. The bill specifically states that the President has the authority to "Use all necessary...force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the 9/11 terrorist attacks".  This is exactly what President Bush has done through his authorization. In fact, the bill does not even specify that the "Persons" in question must be non-citizens, even though the regulations of the spying program go out of the way to make sure that at least one of the parties is outside the country and presumably not a citizen of the United States.  Even if both parties were U.S. citizens and the government knew that one of them was involved with a terrorist organization such as Al-Qaeda, it would still be in the best interest of the security of the country to monitor their communications.

For those who say that the NSA spying program is an unprecedented infringement of the Bill of Rights, they are completely wrong.  In fact, there are numerous historical examples of presidents that have expanded their power in a time of war or national crisis.  Arguably two of America's most respected presidents, Abraham Lincoln and Franklin Delano Roosevelt both greatly expanded their power while in the White House to deal with problems facing the country.  When the southern states of the country seceded from the union, Abraham Lincoln was faced with some hard choices.  In order to save the country from complete disaster, Lincoln launched a military invasion of the south without the consent of Congress, single-handedly suspended the writ of habeas corpus, nationalized the railroads, and censored all telegraph communications.  Over 600,000 men died as a direct result of Lincoln's choice to invade the south, 13,000 citizens in the north were imprisoned without warrants, and countless others' lives were affected indirectly by these decisions.  However, even though some historians label Lincoln as a "Dictator", they admit that he was an excellent president, and did his job by reuniting the country.  Facing the Great Depression and later in his presidency World War II, Franklin Delano Roosevelt also had to make tough decisions on whether the stability and security of the country as a whole was worth violating the civil rights of a few.  FDR's first official action as president was closing the banks until further notice, which he did without the consent of Congress.  Also during the depression, the National Recovery Administration (NRA), an agency of the executive branch, implemented socialist-style price controls. One tailor in New Jersey was actually imprisoned for charging only 35 cents to press a pair of pants, while the NRA code said that one must charge 40 cents to do this.  These types of regulations were in direct violation of the capitalist free enterprise system.  When Japan attacked Pearl Harbor in December of 1941, and World War II began, FDR authorized the internment of over 100,000 Japanese Americans to protect west-coast harbors from sabotage.  Once again, in spite what some critics may refer to as "Abuses of power", FDR is regarded as a national hero and is largely given credit for ending the depression and winning World War II. Any of the previously mentioned actions taken by past presidents make President Bush's authorization of the NSA wiretapping program look like a trivial matter.

Immediately after 9/11, it was not clear whether or not the attacks would be made into political hay. However, as time healed the immediate wounds of the attacks, it was clear that they would be politicized.  On Democratic Underground, a forum notorious for its anti-Bush topics, 88% of the members believe that President Bush did not do enough to stop the 9/11 attacks and most of the blame lies exclusively with the administration, as shown in a recent poll.  Curiously, this website also contains many forum topics denouncing the President for authorizing the "Illegal wiretapping of American citizens".  This is clearly a misrepresentation, considering that one end of any communication being examined is coming from a suspected terrorist outside of the country.  Running for President in the 2004 election, General Wesley Clark, a Democrat, routinely criticized George W. Bush for not doing enough to prevent the 9/11 attacks.  Interestingly, Gen. Clark was interviewed on Fox News in January of 2006, where he asked why the NSA surveillance program is necessary.  It seems as if he has already answered his own question.

President Bush has done a superb job protecting this country since 9/11, as evidenced by the fact that there has not been another terrorist attack on American soil since then.  In an increasingly politically-minded country, the furor over the President's authorization of the NSA wiretapping program amounts to little more than another political attack on the President by his political enemies.  President Bush has the Constitution, the law, and historical precedent on his side.  When will the President's critics, who say he could have done more to prevent the first terrorist attack, acknowledge that the surveillance of suspected terrorists is the most important policy to keep us safe from the next terrorist attack?

September 11^th - why did it happen?  It happened because terrorists were inside the United States, living as American citizens. Why didn't the government discover their plot?  Due partially to procedures and rules set forth regarding warrants, the government was always a step behind.

Because the discovery of the 9/11 plot was in some ways prevented by certain guidelines, the government instituted the Domestic Surveillance Program shortly after the attack.  This program gives the government room to move quickly when searching for possible terrorists. Not only is it legal, it is an absolute necessity in order to fully protect the citizens of the United States.  The country is in the midst of a war, and it is at times such as these that extreme measures must be taken.

There are, however, many doubts as to the legality of the program.  First and foremost is the concern that it violates FISA.  Overall, FISA requires that the Attorney General approve an application for a warrant from a special court created by FISA.  The application must show sufficient evidence to believe that the suspect is a foreign power or an agent of a foreign power.  The most important aspect to consider, however, is that FISA still preserved the Executive branch's constitutional authority to authorize NSA activities during wartime. Had it not done so, FISA would be unconstitutional.  While FISA created guidelines and rules for authorities to follow, it also indicated that it would be possible for later legislative acts to authorize electronic surveillance outside the procedures that it had set forth, meaning that other acts and laws could be created with standards that contradict those of FISA's.  Furthermore, numerous lawyers have reviewed the Domestic Surveillance Program and provided independent opinions that it is legal.  Therefore, the program is legal under FISA's standards.

Further issues are those of the executive branch's authority.  Critics are saying that the president has overstepped his constitutional rights by enacting this policy, but they are incorrect.  First, our country's history must be considered.  Presidents since at least 1940 have issued wiretaps for foreign intelligence purposes.  After the United States declared war on Germany in World War One, President Wilson ordered the censorship of all messages sent outside of the county.  President Roosevelt reacted similarly in the aftermath of Pearl Harbor, by authorizing warrantless electronic surveillance of people suspected of spying, and commanding the control of all telecommunications traffic going both in and out of the United States.  These methods worked effectively.  Carl Boyd, author of books such as American Command of the Sea Through Carriers, Codes, and the Silent Service: World War II and Beyond, expressed that in general, secret intelligence "helped to shorten the war by perhaps two years, reduce the loss of life, and make inevitable an Allied victory."  The constitution states that the President has authority over the army and the navy, and all aspects of war.  As espionage is a crucial element of war, he has not exceeded his constitutional rights by enacting this program.

Furthermore, the president's constitutional authority must be recognized.  In order to carry out his responsibilities of national security, the President must have the ability to gather necessary information.  Additionally, in the preamble of the Authorization for Use of Military Force, (AUMF) which was enacted in the wake of September 11^th, Congress wrote that, "The President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."  It also authorizes the President to "use all necessary and appropriate force" against any nation, person, or organization he determines aided in the terrorist attacks.  The AUMF also declares that the President should use force, "to prevent any future acts of international terrorism against the United States."  Likewise, the Supreme Court has consistently recognized the President's authority to conduct intelligence activities, because they are a key element in his responsibility to protect our nation.

While referring to history, one needs to look not only at what past presidents have done, but also to the rulings of former court cases.  The foremost example of this is the 2004 Supreme Court case of Hamdi vs Rumsfeld.  In that case, there was a question as to whether the President could detain an American citizen in violation of an existing statute. The Supreme Court ruled that when Congress authorized the President to use military force it constituted as permission to do so.  In the authorization to use military force, detention (which means Hamdi was kept in the United States and held without a warrant) is not mentioned; however, it is a fundamental incident of waging war.  Likewise, electronic surveillance is an essential aspect of waging war.  The use of military intelligence and secret service to identify and pinpoint the enemy is a traditional component of military operations in wartime, thus the President's authorization of warrantless phone taps is legal. Additionally, in the case of the United States vs. the United States District Court, the conclusion was made that the Fourth Amendment's warrant requirement applies to the investigations of wholly domestic threats.  In that case, the Supreme Court clearly stated that it was not addressing the President's authority concerning foreign intelligence surveillance without a warrant, stating, "The instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."  These court cases clearly demonstrate the legality of the domestic surveillance program.

Another concern of both politicians and American citizens is that this policy is an invasion of privacy.  Contrary to this belief, this is a very limited and focused program.  First of all, one side of the communication must come from outside the United States; it cannot be used on two suspects inside America.  Also, not every call going in or out of the United States is tapped.  In fact, most are not.  In order for the phone call to be tapped, there must be a reasonable basis to believe that one party of the call is a member of al-Qaida or a member of an organization that is affiliated with al-Qaida.  General Michael Hayden said, "We're going after very specific communications that our professional judgment tells us we have reason to believe are those associated with people who want to kill Americans."  Any conversations intercepted that are unrelated to terrorism are destroyed and not reported, but the average phone call, for business or to friends or relatives, is not tapped.  In the way the program is run, it is not an invasion of privacy.

"At the conclusion of the Constitutional Convention, Benjamin Franklin was asked 'What have you wrought?' He answered, ' ...a Republic, if you can keep it''' (The Constitution).  As the United States ardently engages in the War on Terrorism, one may think that terrorists would be the strongest opposition to Franklin's republic; however, the present actions of the President of the United States, through his use of unwarranted electronic surveillance, additionally endangers the freedoms that Franklin passionately promised.  Because President Bush chose to bypass the Constitution and failed to abide by the laws of the land, his domestic wiretapping actions weaken the republic.  Likewise, the people who passively tolerate this process and discard such governmental actions as minor inconveniences further relinquish essential Constitutional rights that the Forefathers sought to protect.  This is the case that faces Americans today as they seek to "balance liberty and security" while attempting to make sense of President Bush's unwarranted wiretapping procedures (Thomas and Klaidman 5).  In order to resolve this problem, Americans must recognize that the President is committing an unconstitutional invasion of privacy because he fails to abide by the system of checks and balances, the Foreign Intelligence Surveillance Act, and the Fourth Amendment to the Constitution of the United States of America.

When President Bush conducts unwarranted wiretaps, he shows little respect for the fact that the Forefathers purposely divided the government into three separate branches with checks and balances.  In setting forth these branches, the writers established provisions to restrain any individual from obtaining excessive power.  They recognized that the president, as the executive branch, should have the least power, in order to prevent a monarchal atmosphere in a desired democracy.  Consequently, in delineating executive power, the writers make certain that a balance of powers exists (The Constitution Art. II). Thus, when President Bush initiated wiretapping, he became guilty of bypassing Congress and the judicial system while moving beyond the executive powers of the Constitution, and blatantly committing unlawful behavior.  Critics have called these actions Bush's "executive fiat" and see them in direct violation of the "constitutional form" of government (Schell 8). Therefore, Bush acts in complete opposition to the Constitution, by failing to abide by the system of checks and balances.

President Bush additionally acted against the Constitution when he defied the 1978 Foreign Intelligence Surveillance Act, known as FISA.  Lawmakers specifically set forth this protection to prevent the President from abuses of wiretapping activities, because "from Watergate, Congress knew that a President was fully capable of wiretapping under a false claim of national security" (Holtzman13).  FISA clearly states that it "bars electronic  surveillance of persons within the U.S. without the approval of the United States Foreign Intelligence Surveillance Court" ("NSA").  Thus, President Bush violated this order of operations completely when he failed to seek approval before secretly wiretapping countless Americans.  This law respects the need for such electronic surveillance and sets forth provisions for the President to obtain court permission to do so; yet, President Bush chose to act illegally, clearly knowing that such actions were in violation of the Constitution. When questioned about this travesty, Attorney General Gonzales defended the President's actions saying that President Bush did not ask Congress to allow the president to take these actions, because the president knew Congress would not grant it (Cole 5). Additionally, the President was aware that he was required to get court orders as he spoke directly about this in a speech in April 2004, one year before the public revelation of the wiretappings.  At this time the President explained that the Patriot Act supported the Constitution, such that: "...a wiretap requires a court order. ...When we're talking about chasing down terrorists, we're talking about getting a court order before we do so... constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution" (''NSA'').  Following the New York Time's exposure of the wiretapping, the President freely admitted that he overstepped FISA; however, on this occasion, he expressed an opposite view, saying that the Patriot Act allowed him to take such action (Schell 8).  Consequently, although measures within FISA allow for lawfully obtaining this surveillance, Bush knowingly took action counter to the Constitution by overstepping FISA and using domestic wiretapping without permission.

To further expose President Bush's unconstitutional use of eavesdropping, it is necessary to understand the Fourth Amendment.  This amendment clearly states that in order for investigators to conduct searches and seizures, the investigation must be reasonable, and inspectors must first be able to describe "the persons or things to be seized" and "the place to be searched."  In analyzing the constitutionality of wiretapping, one must determine what is meant by the term "unreasonable" as it describes "searches and seizures" (The Constitution).  Just as reason tells a person to quit reading a diary when the contents are useless and it results in the owner's wrath, reason should inform Bush that his use of wire-tapping is similarly unreasonable.  Reason would be unsupportive of an action that breaks the law, causes distrust from the American people, and yields unsatisfactory results, since it has only led to the arrest of one criminal in the four years of its implementation.  Additionally unreasonable is the fact that this criminal was ill equipped to accomplish his intention to single-handedly destroy the massive Brooklyn Bridge through the use of one acetylene torch (Cole 6).  Similarly, the program fails to meet the Fourth Amendment requirement of providing a description of the person and place that authorities will search and seize (The Constitution).  For instance, Bush authorized the National Security Association to scan billions of electronic communications each day to search for various phrases and patterns.  Investigators then further scrutinize these selected messages before dismissing them as harmless (Thomas et al.).  Thus, the National Security Association's procedure of untargeted wire-tapping lacks the necessary identification of a specific person for officials to search and seize.  Therefore, Bush's wire-tapping violates the Fourth Amendment rights through its reliance on unreasonable and indiscriminate investigations.

Despite the glaring Constitutional evidence against domestic eavesdropping, a group of individuals remain blind in their support of the program.  These supporters argue: "Bush acted within the historic bounds of wartime presidents ... " (Epstein).  People with this belief contend Bush's appropriateness by linking his decisions to past presidential actions such as Franklin Roosevelt's wiretap of suspicious Americans during the Cold War; however, the FISA courts were nonexistent during Roosevelt's era.  An additional flaw in the argument of historical precedent is that it equates Bush's wiretapping to President Nixon's eavesdropping that led to the Watergate scandal and brought about the establishment of the FISA courts (Thomas and Klaidman 5).  Supporters also argue that Bush's actions are necessary for adequate protection within "real time, not judiciary time" (Tanter 16).  These advocates must remember that this protection is equally present when presidents act in accordance with the Constitution, since FISA allows presidents to legally take such action within a 72-hour grace period, before they secure the court's permission ("Bush").  Benjamin Franklin summarizes the fault in the argument that infringement of laws is necessary for protection when he declares: "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety" (qtd. in Thomas and Klaidman).  Therefore, although there are those who support the President's eavesdropping actions, their arguments are based on emotion rather than law.  Given the fact that the President has acted in clear violation of established Constitutional laws, Americans must devise a plan that rectifies this action and insures physical safety without compromising the essential rights of the Constitution. Americans need to begin this process by insuring that the balance of powers, as set forth in the Constitution, exists within the three branches of government.  Additionally, a review and clarification of the FISA system would prove beneficial so that the government would be aware that FISA can provide immediate action, confidential hearings, and expedited warrants for the immediate action necessary in the current War on Terror. Furthermore, through the implementation of checks and balances, the Legislative and Judicial branches must insure that the president either conforms to the law or loses his right to the presidency.  Abraham Lincoln gives support to this corrective plan for the maintenance of a just government that abides by the Constitution by declaring:
     Our safety, our liberty, depends upon preserving the Constitution of the United
     States as our fathers made it inviolate.  The people of the United States are the
     rightful masters of both Congress and the courts, not to overthrow the Constitution,
     but to overthrow the men who pervert the Constitution. ("Constitutional Defense")Therefore, President Bush should eavesdrop on this reminder: The Constitution and the laws exist to facilitate a president's war actions, and only by adhering to these laws, can a president equally provide safety and support while protecting the freedoms of a democracy.

Works Cited

Cole, David. "The Emperor's Powers."  The Nation. 9 January 2006: 5-6. EBSCO. Grove City

College. 17 March 2006 <http://<http://www.epnet.com/>.

The Constitution of the United States. Phiadelphia: National Constitution Center, n.d.

Epstein, Edward. "Justice Dept. Gives 42-Page Rationale for Secret Spying." San Francisco

Chronicle. 20 January 2006. Power Library. EBSCO. Laurel High School Library. 23 February 2006 <http:/www.epnet.com/>.

Holtzman, Elizabeth. "The Impeachment of George W. Bush." The Nation. 30 January 2006: 11-18. EBSCO. Grove City College. 17 March 2006 <http://www.epnet.com/>.

"NSA Warrantless Surveillance Controversy." Wikipedia.com. 2006. Wikipedia. 22 March 2006 <http://en.wikipedia.org/wiki.NSA _ warrantless_surveillance_controversy>.

Schell, Jonathan. "The Hidden State Steps Forward." The Nation. 9 January 2006: 8. EBSCO
Grove City College. 17 March 2006 <http:/www.epnet.com/>.

Tanter, Raymond. "Bush and Domestic Spying: Good for America?" USA Today. 22 December 2005: 11a. EBSCO. Grove City College. 17 March 2006 <http:/www.epnet.com/>.

Thomas, Evan and Daniel Klaidman. "I Spy." Teen Newsweek. 23 January 2006: 4-5.

Thomas, Evan, et. al. "Full Speed Ahead." Newsweek. 9 January 2006. EBSCO. Grove City College. 17 March 2006 <http:/www.epnet.com/>.