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February 2006 - Article 1
“TO WIRETAP OR NOT TO WIRETAP”
by Jessica Kuzmier Would you be willing to let a terrorist act take place in order to protect the Constitution? Or are you so partisan that you don't want the president do his job in protecting the country? No matter what position you come down on the wiretap controversy, inflammatory rhetoric has been ascribed to both positions. If you're offended by the secret NSA program, you're a raging liberal. If you're for the wiretapping, you're a party hack. Such is the mood of the country. No wonder it seems that most people I've run into don't seem to care about the whole controversy. No matter what side you're on, someone isn't happy. The public have more pressing problems, like staying out of bankruptcy and getting the kids educated. Of course, that's the nature of these things. The fire on both sides of the political aisle has really started raging, whether it's about the Alito confirmation, the conflict over the Mexican border, or tax cuts. One of the hallmarks of self-esteem is not being bothered by others' opinions. It's also a sign of a sociopath, but who's paying attention? The war on terror has brought out justifications for all kinds of actions, such as the war on Iraq and the right to spy on library records. If you don't like it, you can move to another country (Venezuela, anyone?). Or so I've heard some people say. But that's their opinion. Now, the Senate Judiciary Committee is investigating the allegation of NSA spying on American's phone calls. The administration has said spying is limited to overseas phone calls with "known" terrorists (if they're so "known", why doesn't the government just go and get these crooks?), which is innocuous sounding enough. It makes it out to sound like if you're against that, you must not care about protecting the American people. If you could stop a terrorist attack by spying, why would you object to this? No one's getting tortured. The onus is on the one being wiretapped: why do you have phone calls from questionable people to begin with? If you're just a scholar or a journalist doing legitimate research, you wouldn't mind telling the government what's going on. That is, unless you're sympathizing with the terrorists. And if you're a terrorist or a sympathizer, we want you jailed anyway. It is the needs of the many outweighing the few. If all you heard was the White House's point of view, you'd think his opponents were objecting to spying. You'd think the bin Laden tape was a gold mine rather than an ominous warning from an archenemy. See? I'm right!, the president seems to be crying out. All of you have forgotten who I'm up against! I'm justified no matter what I do, if you don't believe me, listen to this guy! Of course, in his rhetoric, the president is evading the point. The real objection has never been about the spying, but the lack of oversight and clearances. By now, it is common knowledge that this spying has been done without obtaining any permission of the courts, even retroactively, as ordained by FISA (Foreign Intelligence Surveillance Court). The administration has alleged that process is not expedient enough. Warrants would prevent the NSA from acting on information in a timely matter, especially if it is of vital national security. But seeing that one can obtain warrants retroactively, this logic seems unfounded. Similar justification has been used to back up holding people indefinitely without charge in Gitmo and Guantanamo Bay. If the secret prisons in Eastern Europe turn out to be a reality, this will also fall into the umbrella of being necessary to protect the American public. The second problem is the fact that the administration has embarked upon this program without any legislative oversight, other than notifying the so-called "Gang of Eight". Of course, again, expediency, "presidential authority", and secrecy are the reasons for this uh-oh. It's as if the administration has forgotten that there are other bodies that they have to consult with before it creates an agenda. The administration has used the broad base of authority it claims it was granted by Congress after 9/11 as its justification for secrecy. Based on this logic, the administration never has to work with Congress over anything anymore because of 9/11. It also seems that the administration did not even inform the congressional intelligence and oversight committees privately as a matter of courtesy. The claim by some that Article 2 of the Constitution gives the President a go in this matter is vague. In fact, it gives more credence to consulting with Congress, particularly the Senate. Asking the secretary of the NSA about the program doesn't mean concealment from the Congress. There is nothing in Article 2 which adjudicates lack of oversight, checks, and balances. So, what is the big deal if there are secret prisons, or if people are unknowingly being spied upon without any checks and balances from the court? The court would just be an inconvenience and would probably rubber stamp it anyway. And look how these congresspersons tie everything up indefinitely. Heck, the Democrats would probably filibuster out of spite. Some disgruntled lefty would tell the New York Times about it. It would seem all this red tape would just make everything unnecessarily cumbersome. Isn't catching the terrorists and protecting the American people a priority? The short answer is, of course. The real problem with the secret wiretapping and the alleged secret prisons is the precedent it sets. Many autocratic countries, including but not limited to China, Saudi Arabia, and Libya have secret practices with no way for the people to safely counteract. This is done in the national interest, of course. The reality is, nothing occurs in a vacuum. National security can be used to justify almost any atrocity, including torture, murder, and genocide. The Fourth Amendment of the Constitution clearly states that the people are "to be secure in their persons, houses, papers and effects ..... but upon probable cause, supported by Oath or affirmation, describing the place to be searched, and the persons or things to be seized". Because the NSA program violates the provision that a warrant be issued, it needs to be secretive in nature, else constitutional advocates would have a field day. Lacking in checks and balances, as well as oversight, the government would wield a power that no one could defend against, or elect out of office, because it is unknown and under the radar. Once oversight has been eliminated out of a government's political structure, the ability of a people to hold their government in check is curtailed sharply. People can't hold the government accountable for things they don't know. The government can now conduct its own practices without fear of recrimination, and the people have no way to fight back. This is of course, why the Constitution was set up to begin with. A government cannot use issues such as national security to violate its own codes and still be democratic. All autocratic governments think they have great reasons to curtail human liberties, or violate constitutional rights. The more secretive their violations are, the more they can get away with. Then all elected officials are figureheads, a veneer of democracy. They can't protect the people from what they don't know themselves. The question becomes, how far do you want to go to protect national interests? Certainly a nation has the sovereign right to protect themselves. But the Constitution exists as a means to protect the people from themselves. The nation was founded to execute practices under the rule of law, not the whims of what seems best at the moment. In the case of secret wiretapping, a retroactive warrant can be issued. Notifying those who have been spied on if they have been cleared seems like adequate compensation given the needs of the war on terror. It allows the government to conduct whatever searches it needs, while preventing the veil of secrecy that is the death knell of any civilized society. |