NCPA - National Center for Policy Analysis


December 23, 2005

After a recent leak about National Security Agency wiretaps on international phone calls involving al Qaeda suspects, members of Congress and the media claimed the wiretaps were illegal. The truth is closer to the opposite, says the Wall Street Journal.

The allegation of Presidential law-breaking rests solely on the fact that President Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. However:

  • No Administration then or since has ever conceded that the Act trumped the President's power to make exceptions to FISA if national security required it.
  • FISA established a process by which certain wiretaps in the context of the Cold War could be approved; it was not a limit on what wiretaps could ever be allowed.
  • In several cases, a special panel of judges heard FISA appeals and found "the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information;" and, "FISA could not encroach on the President's constitutional power."

The evidence is also abundant that the Administration was scrupulous in limiting the FISA exceptions, says the Journal:

  • They applied only to calls involving al Qaeda suspects or those with terrorist ties.
  • Far from being "secret," key Members of Congress were informed about them at least 12 times, says the President.
  • The two district court judges who have presided over the FISA court since 9/11 also knew about them.

These wiretaps were not used for criminal prosecution but solely to detect and deter future terrorist attacks -- which is precisely the kind of contingency for which Presidential power and responsibility is designed, says the Journal.

Source: Editorial, "Thank You for Wiretapping," Wall Street Journal, December 20, 2005.

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