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Political Science

Warrantless Wiretapping: Protection or Threat?

Intruduction

Ever since the war on terror announced by former President George W. Bush, there has been heightened security measures across America, with both legal and illegal procedures taking place. Whether such questionable protocols, especially warrantless wiretapping, are required and allowed under federal, state and local legislation, not to mention ethical boundaries, in the interest of national security, is discussed herein.

Historical Background

Due to increased terrorist activities and national security breaches occurring more frequently within the United States, the National Security Agency (NSA) began various top-secret programs to stop insurgents, both foreign and domestic. One of the most infamous of these programs was the President’s Surveillance Program, authorised by former President George W. Bush, weeks after the World Trade Centre attacks.

Part of this national security program allowed warrantless wiretapping of all phone calls flagged by the NSA. Several organisations also took part in this program, including the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), the Office of the Director of National Intelligence (ODNI), and the National Counterterrorism Centre (NCTC).

Although initially classified under legislation issues, the government was forced to publicly disclose the information regarding the President’s Surveillance Program after the was claimed to have been ‘covered up’ by the government, after the advisor to the Attorney General resigned upon the program’s inception.

The Department of Justice was not aware of the program and was left uniformed, leading to conflicts between the President regarding its legal authorisation, leading to a new Presidential authorisation under which the President had the authority to use ‘all necessary and appropriate force’ against acts of terrorism against the United States.

Although the warrantless wiretapping was in direct breach of the Foreign Intelligence Surveillance Act of 1978, the President was able to override the legislation using an executive order, also known as discretionary power. However, much of the information accessed through warrantless wiretapping by the NSA was leaked, leading to the publication of classified information, including details from the NSA’s security database.

Due to the nature of the attack on the United States, the President was not involved in any legal proceedings for breach of federal legislation both before or after the implementation of the President’s Surveillance Program. In effect, the NSA was responsible for carrying out the order of the President, and was therefore liable. This led to a major lawsuit between the American Civil Liabilities Union and the National Security Agency.

Discussion

According to the Constitution, the President is allowed to set and change foreign policy, which is known as ‘presidential determination’. As part of the executive order, the President ordered that all international calls be monitored for insurgent activity linked to terrorist groups. However, when the NSA carried out the order, it also wiretapped certain local phone lines that were flagged as suspicious.

From the perspective of the United States Court of Appeals, the burden of proof fell to Congress to press charges against the government, as it was not informed of the executive order of the President, as was the Department of Justice. However, neither Congress nor the Department of Justice appealed in the court of law. Nevertheless, the National Security Agency, as aforementioned, was involved in a lawsuit with the America Civil Liabilities Union, in which the presiding judge found that the President’s Surveillance Program was unconstitutional under the Fourth and Fifth Amendments of the Constitution, which covers privacy and guards against unreasonable search and seizure by government agents.

However, the decision was overturned by the United States Court of Appeals and ultimately, in 2007, the Protect America Act of 2007 was enacted by the United States Foreign Intelligence Surveillance Court of Review as an amendment to the Foreign Intelligence Surveillance Act, which removed the warrant requirement for government surveillance.

Though this was quite controversial, this act allowed both foreign and domestic warrantless wiretapping of all Americans communicating with foreigners who are the targets of United States terrorism investigations. Under this amended act, the Director of National Intelligence and the Attorney General could authorise the surveillance of all communications of both United States and non-United States citizens.

Although espionage is often considered a crime, it can be an important factor in undermining the effect of crime and terrorism in America1. With technological advances rapidly increasing, it can be seen, in some extreme cases, such as terrorist attacks on national soil, that warrantless wiretapping can aid investigations into identifying the key conspirators behind such attacks.

Furthermore, in the interest of national security, warrantless wiretapping is one of the ‘lesser evils’. National security is both an interesting and complex issue regarding law enforcement in the United States2. Where to overlook such issues and take action, and when to plan a legal course of action, should be taken in light of the interests of the government, and of the nation at large. The quantity and quality of security is a key driver of drops in the crime rate3. The government knew the risks when implementing the President’s Surveillance Program, but still did. Therefore, this counter-terrorism step seemed to work in the favour of the government, at least in terms of stopping such public terrorist attacks.

Such national security measures have become commonplace after the passing of the Protect America Act, and whether or not such measures have been effective in limiting terrorism is yet to be seen, as most findings remain classified. These trends in defense and national security measures continue as part of the government crackdown on terror4.

Analysis

Despite being clearly in breach of important legislation, such as the Constitution and the Foreign Intelligence Surveillance Act, the government pursued the insurgents who orchestrated terrorism attacks, despite the cost to the nation, in both physical and monetary terms.

The Bush administration ultimately did not succeed in finding the kingpin behind the terrorist attacks of September 11, and the warrantless wiretapping did not seem to be beneficial in many ways, as public outcry resulted in major lawsuits and security breaches within the NSA and CIA.

However, for the sake of national security, such cases should be allowed, including warrantless wiretapping, if it results in circumstances that benefits the government, the public, and the nation at large. The main purpose of overriding security measures is to catch the culprits, whether foreign or domestic, and if this is achieved, then warrantless wiretapping is a small cog in the big scheme of the government system.

Conclusion

In summary, warrantless wiretapping in the interests of national security have become a major security measure for the government, and one that remains controversial. Despite such covert operations and breaches of legislation, major security agencies agreed to implement such programs to protect Americans from future harm. Therefore, in such cases, warrantless wiretapping is an allowable security measure in regards to the protection of national security, if such measures are beneficial to all parties involved, and successful in limiting such terrorist attacks on national soil.

Works Cited

Stadler, William. “The Quiet Threat: Fighting Industrial Espionage in America.” Security Journal 25-1 (2012): 90-93. Palgrave Macmillan. Web. May 2013.

Waxman, Matthew. “Police and National Security: American Local Law Enforcement and Counter-Terrorism after 9/11.” Journal of National Security and Policy 3-2 (2008): 181-191. Science Research Network. Web. May 2013.

Farrell, Graham. “The Crime Drop and the Security Hypothesis.” Journal of Research in Crime and Delinquency 48-2 (2011): 147-175. Sage. Web, May 2013.

Mowery, David. “National Security and National Innovation Systems.” The Journal of  Technology Transfer 34-5 (2009): 455-473. SpringerLink. Web. May 2013.