U. S. President George W. Bush promulgated a secret executive order soon after 9/11 that capacitated the National Security Agency (NSA) with an authority to carry out wiretapping of suspected persons in America. The hallmark of this executive order was to conduct surveillance without acquiring approval or warrants from a FISA court. This order and activity was unlawful and unconstitutional as it trespassed its legal and constitutional jurisdictions and violated the legal and constitutional privacy rights of the people.
New York Times reported that Bush administration justified this mass wiretapping program as a “critical tool in helping disrupt terrorist plots and prevent attacks inside the United States” (Risen. J & Lichtblau Eric. 2005) and considered it vital for national security. When this secret order was made public, most people took it as right move as it aimed the enhanced security for American citizens without taking into account its ethical aspect.
This order has serious ethical repercussions as it has harmed the cherished American ideals of personal freedom, right of privacy and the constitutional provision for no illegal and unjustified intrusion in the lives of American national provided under fourth amendments. The ethical connotations of this issue has other implications too as it not only violates the celebrated ideals of freedom by government overstepped its limits by using excessive powers and oversighting an already established law i. e. Foreign Intelligence Surveillance Act and Fourth Amendment.
Foreign Intelligence Surveillance Act, promulgated in 1978 defines the extent and limits of Justice department’s authority for mass surveillance and wiretapping. According to FISA, Justice Department must obtain surveillance warrant from Foreign Intelligence Surveillance Court (FISC) within 3 days after the commencement of surveillance. This act provides FISC judge to grant permission for surveillance if the judge believes that “there is a probable cause to believe that… the target of the electronic surveillance is a foreign power or an agent of a foreign power.
” (50 U. S. C. §1805(a)(3). ) FISA also devised another mechanism as it provided the president with powers to authorize Justice Department to eavesdrop on foreign governments and their agents for upto one year without a court order. (50 U. S. C. §1802(a)(1). ) This act clearly manifests that surveillance and wiretapping is permitted when a foreign power and/or its agent are involved in activities that are a threat to American security or international terrorism.
Bush administration defended the presidential order on the grounds that FISA and its processes impede the speedy and agile actions needed to acquire the information about the activities of terrorists and their agents and to disrupt the acts of terrorism. US Attorney General Alberto Gonzales asserts that presidential order about the domestic surveillance is in accordance with authority vested in the office of President by U. S. constitution. He claims that: The terrorist surveillance program is firmly grounded in the President’s constitutional authorities.
The Constitution charges the President with the primary responsibility for protecting the safety of all Americans, and the Constitution gives the President the authority necessary to fulfill this solemn duty. (U. S. Department of Justice, 2006) General William Moschella, Assistant Attorney for legislative affairs in Justice Department questions the quickness of FISA and its mechanisms and defended the presidential order to equip NSA with warrantless surveillance authority. He wrote, “FISA could not have provided the speed and agility required for the early warning detection system.
In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities. (Department of Justice. 2005) He further said that FISA is good tool in a long-term investigation perspective but unable to deliver in speedy environment and the government is “taking full advantage of any developments in the law.
” (Department of Justice. 2005) An important ethical aspect of this controversy is the violation of individuals’ rights provided under fourth amendments. The Bush order enabling NSA to conduct warrantless wiretapping is a violation of Fourth Amendment that protects the right of American Citizens against unreasonable surveillance. This Amendment states that “right of the people to be secure… against unreasonable searches and seizures” and “no Warrants shall issue, but upon probable cause”.
Several judicial rulings has clarified that FISA is not a violation of the Fourth Amendments because FISA recognizes the need of a probable cause and requires the agencies to produce a probable reasonable cause for the issuance of surveillance warrants. The executive order issued by the President Bush for warrantless surveillance is an explicit violation of the fourth amendment as it enables the security agencies to intrude the private lives of American people without providing any “probable cause” for this act.
The Bush Administration never claimed that the FISA is unconstitutional but regarded it outdated and requires amendments. By doing so, Bush Administration deluded the American that they were acting in accordance with the FISA. President Bush on certain occasion accepted publicly that are working under the rules and regulation of FISA. For example, President said on April 20, 2004: “Now, by the way, any time you hear the United States government talking about wiretap, it requires–a wiretap requires a court order. Nothing has changed, by the way.
When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. ” (The White House, 2004, Feingold, Russ. 2006) Senator Russ Feingold provides further statements while President Bush asserted that the surveillance program is in complete compliance with FISA. (Feingold, Russ. 2006) When the matter was disclosed to public, Bush Administration provided false and fabricated justifications that President is complying with his authoritative powers. We all are well aware of the fact that Bush intentions are good.
His sole motive was to authorize the agencies with necessary powers for speedy interception of terrorists’ activities. But there is a proper and ethically suitable way to capacitate the NSA with this authority i. e. to formulate new laws if the previous ones are obsolete and not capable of handling the critical situation. Feingold says in this regard that “Defeating the terrorists should be our top national priority, and we all agree that we need to wiretap them to do it. In fact, it would be irresponsible not to wiretap terrorists.
But we have yet to see any reason why we have to trample the laws of the United States to do it. ”(Feingold, Russ. 2006). And if the present surveillance act requires modifications and amendments, it must not be modified at the cost of the rights of privacy provided by fourth amendment. In this perspective the recommendations of the American Bar Association must be considered that says that “Any amendment to FISA — and some of these bills, including the Specter bill and others, would eliminate that requirement of a warrant, and in doing that, damage, fatal damage, would be done to the Fourth Amendment of the U. S. Constitution.
And we can’t afford to have one of our Bills Of Rights so easily dismissed. The Fourth Amendment requires that there be a warrant issued and that there be probable cause existing before someone is spied on. Any bill that Congress enacts must continue to have those two Fourth Amendment protections. ”(ABA. 2006) Above-mentioned arguments and supporting evidence clearly manifest that Presidential order was unethical as it violated the moral and ethical values of human society in general and American socio-political ideals in general.
So it should be repealed.
American Bar Association. President Bush is “Undermining Rule of Law” By Ignoring Laws Passed by Congress. Jul. 2006. 16 October 2008 <http://www. democracynow. org/article. pl? sid=06/07/26/147209> In an interview with Amy Goodman, ABA President Michael Greco takes into account the ABA’s new report that criticizes Bush administration’s use of excessive powers especially eavesdropping on American citizens in the name of national security.
Greco considers presidential power pertaining to domestic surveillance as he undermines the constitutions in this regard. He is of the view that surveillance must be conducted un FISA. He is of the view that FISA bill creates a balance between spying and individuals rights and ““That bill, enacted in 1978 to address abuses by the then administration of spying on Americans, has some very important safeguards in it. ”