Domestic wiretapping: President Bush and the rule of law

Stop watching me

It was a devastating attack that took the United States completely by surprise and forever awakened Americans from the slumber of confidence that the two seas protected them from harm. Within days of the attack, Congress passed a resolution authorizing the President to use “all necessary and appropriate force” against those responsible for the terrorist attack, namely Al Qaeda. Soon afterwards, American warplanes bombarded Afghanistan, where Al Qaeda was being sheltered by the soon-to-be-ousted Taliban regime.

Yet, also soon afterwards – and unbeknownst to the American people – the National Security Agency (NSA) began to spy on Americans without a warrant as required by the Foreign Intelligence Surveillance Act (FISA). Streams of emails, telephone numbers, email addresses, and names of possible suspects were sent to the FBI by the NSA, and FBI agents were sent to check out the tips. This domestic spying program only came to the attention of the American people after it was publicly disclosed by the New York Times late last year, and it caused an uproar among politicians and ordinary American alike.

In fact, U.S. District Judge James Robertson, a federal judge who served on the Foreign Intelligence Surveillance Act court that reviews government requests for secret eavesdropping to gather intelligence on potential U.S. enemies, quit in protest over the Bush Administration’s domestic surveillance program. The New York Center for Constitutional Rights said in a statement, “Apparently Judge Robertson did not want to aid and abet criminal NSA electronic surveillance.”

Bush Administration officials, for their part, have vigorously defended the program. They have said that the program is limited to eavesdropping on U.S. residents in contact with individuals overseas suspected of having links to Al Qaeda. President Bush has characterized the program as a “vital tool” against terrorism, and Vice President Dick Cheney, who was actively involved in the creation of the NSA program, has defended it as “critical to the national security of the United States.” National Intelligence Director John Negroponte told a congressional panel on Feb 2: “This was not about domestic surveillance. It was about dealing with the international terrorist threat in the most agile and effective way possible.”

Moreover, Republicans are planning to use this program as a political tool against the Democrats this election season. At the winter meeting of the Republican National Committee, White House Deputy Chief of Staff Karl Rove said: “At the core, we are dealing with two parties that have fundamentally different views on national security. Republicans have a post-9/11 worldview and many Democrats have a pre-9/11 worldview.” He criticized Democrats for “wild and reckless and false charges” against President Bush on the issue of domestic spying, and RNC Chairman Ken Mehlman asked, “Do Nancy Pelosi and Howard Dean really think that when the NSA is listening in on terrorists planning attacks on America, they need to hang up when those terrorists dial their sleeper cells in the United States?”

Such rebuttals against the criticisms of the domestic spying program are misplaced, if not misleading. None of the critics of the NSA’s surveillance program – including myself – have criticized the goals of the program. As an American citizen, I expect my government to be spying on those individuals – American citizens or otherwise – who are plotting terrorist attacks against my country. I expect my government to detain any individual – American citizen or otherwise – who is in my country with plans to harm her citizens. I expect my government to interrogate terrorist suspects who are picked up anywhere in the world, so that ongoing or future terrorist plots against my country are foiled. Failing to do any of these tasks would be nothing short of criminal.

Yet, I expect my government to do said tasks within the framework of the law. It seems that the domestic surveillance program failed to do so. A report by the Congressional Research Service, the research arm of Congress, concluded that warrantless eavesdropping authorized by President Bush conflicts with existing law and hinges on weak legal arguments. According to the report, Congress expressly intended for the government to seek warrants from a special Foreign Intelligence Surveillance Court before conducting such surveillance when it passed legislation creating the court in 1978.

What I am saying, therefore, is not that spying against Americans colluding with terrorists is wrong, quite the opposite. I am simply saying that the government should get a warrant to do so. And obtaining such a warrant is not that difficult. Last year, according to a report to Congress, the FISA court received 1,758 warrant requests, and it approved all but four. Thus, why the Bush Administration would choose to bypass the court and spy on Americans without a warrant is utterly perplexing.

The same goes for the detention and interrogation of terror suspects. I am not saying we should not detain those who may do harm to our country. No. All I am saying is that we should not indefinitely detain those individuals without charge. I am not saying that we should not interrogate terror suspects. No. All I am saying is that we should not torture said suspects, or export them to other countries to do the torturing for us.

This is because we are a nation that lives by the rule of law. It is the foundation of our country, our society, and our values. We are not like our enemy, who has absolutely no respect for neither the rule of law nor the value of human life. If we compromise on our values simply because our enemy is brutal and inhuman, then everything America stands for, everything that has been done on behalf of America will have been for nothing. America is much too valuable to let that happen.

At a recent Senate Intelligence Committee meeting, Senator Pat Roberts (R-KS) suggested that Democrats are more focused on civil liberties than threats from terrorists: “I would only point out that you really don’t have any civil liberties if you dead.” Sen. John Rockefeller (D-WV), ranking member of the Committee, responded that he was “strongly for the goals” of disrupting domestic terror plots, as every American is. Yet, he also added – and this is the crux of my argument – that he wants “it to be done under the law. And so should you. That’s what keeps our country together.”

Hesham A. Hassaballa is a Chicago physician and writer. He is the co-author of “The Beliefnet Guide to Islam,” published by Doubleday in 2006. His blog is at godfaithpen.com.