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3.17.06
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Domestic Spying Controversy

Civil rights groups and some lawmakers were outraged when President Bush admitted authorizing eavesdropping without court approval on American citizens suspected of having links to terrorist organizations. Was the move necessary to protect Americans, or did his actions undermine civil liberties or even circumvent the law? Those are the questions being asked by U.S. citizens, Congress and the intelligence services themselves.

In fact, just this week, Senator Russ Feingold (D-WI) introduced a measure to censure the President for his actions. Read the Senator's press release and the censure resolution. So what is censure exactly? According to the U.S. Senate's Virtual Reference Desk, it is a "formal statement of disapproval." Only once in the nation's history has a President been censured - it was in 1834, when President Andrew Jackson was denounced for refusing to hand over a document requested by the Senate. Other than that, the Senate has censured nine of its own members since 1789.

Feingold is facing harsh criticism from both Republicans and Democrats for his resolution. Some object on the grounds that the President has every right to take action as necessary to protect the country from terrorism. Others merely feel that Feingold is wasting his breath on a hopeless cause when there are larger political battles to be fought.

While censure is an unlikely outcome in this case, the story leading up to it still has many concerned. Learn about the controversy below.



The Story

On December 16, 2005 James Risen and Eric Lichtblau of the THE NEW YORK TIMES published a story called "Bush Lets U.S. Spy on Callers Without Courts." The story detailed a post-9/11 domestic surveillance programs:

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
The impact of the story was heightened by the TIMES admission that it had held the story for a year at the request of the administration:
The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.
The press, Congress and the public questioning of the program began in earnest almost immediately.

The Laws

On the "Responsible Citizen" portion of its Web site, the NSA says the following:

Americans expect NSA to conduct its missions within the law. But given the inherently secret nature of those missions, how can Americans be sure that the Agency does not invade their privacy? The 4th Amendment of the Constitution demands it... oversight committees within all three branches of the U.S. government ensure it... and NSA employees, as U.S. citizens, have a vested interest in upholding it. Respecting the law is only a part of gaining Americans' trust. -- visit the NSAS Responsible Citizen site
The 4th Amendment which protects the "right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures" is one of the legal bases critics of the program are citing. Another is the Foreign Intelligence Surveillance Act of 1978. The Act was created after revelations in Congressional hearings of surveillance abuses by previous administrations.

FISA "provided a statutory framework for the use of electronic surveillance in the context of foreign intelligence gathering. In so doing, the Congress sought to strike a delicate balance between national security interests and personal privacy rights." The Act required judicial approval before the government engages in electronic surveillance (as well as physical searches) for foreign intelligence purposes. Because of the sensitivity of these issues the Act also established the Foreign Intelligence Surveillance Court as a special court which would hear surveillance applications in secret. The USA Patriot Act made changes in some of the provisions of the 1978 Act but the FISA court requirement remained in place. The President's 2002 mandate to the NSA circumvented this procedure.

The administration responded to the criticism of the program in several ways. President Bush declared that the operation was legal and important to national security. "We're at war," the president said. "This is a limited program designed to prevent attacks on the United States of America and, I repeat, limited." Vice President Cheney, in a speech to the Heritage Foundation, stated:

Another vital step the President took in the days following 9/11 was to authorize the National Security Agency to intercept a certain category of terrorist-linked international communications. There are no communications more important to the safety of the United States than those related to al-Qaeda that have one end in the United States. If wed been able to do this before 9/11, we might have been able to pick up on two hijackers who subsequently flew a jet into the Pentagon.
In addition, Justice Department lawyers sent a letter to congressional members of security committees which lay out their legal justification for the program. The letter, from Assistant Attorney General William Moschella, contends that Article II of the Constitution, which gives the commander in chief authority to protect the nation, and the post-9/11 law that authorized the president to take steps against al Qaeda, permitted him to authorize surveillance outside the FISA system. The letter and the administration also maintain that the FISA system was too slow and cumbersome to adequately protect against terrorist activities: "FISA could not have provided the speed and agility required for the early warning detection system."

This is an assertion discounted by critics and some former NSA insiders. Indeed, THE NEW YORK TIMES reported that "the top deputy to then-Attorney General John Ashcroft refused to approve key parts of the operation in 2004."

Fallout

Calls for an investigation of the program have been heard in both parties and in both chambers of Congress. Already the Congressional Research Service released a report which states the administration's legal justification "does not seem to be as well grounded." However, the report did not reach any definitive conclusions because much of the relevant material is classified. In addition to expected hearings in Congress, the Justice Department is also launching an investigation. However their probe will focus on whether the fact that the story itself reached the press was a breach of national security.

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