The Bush administration's public defense of its warrantless wiretapping program, called the Terrorist Surveillance Program, rests on myths, half-truths, deceptions, and outright lies. The administration hopes that the American people won't investigate its arguments for themselves. It's a good gamble, because if the people found out the truth behind what the administration claims about the TSP, they would unilaterally condemn it and demand to know the truth about it. When conservative Uncle George visits this weekend, let him know why he's wrong to support spying on people "who have something to hide."
The president has the power to guarantee that warrantless surveillance is legal
Under the Constitution, only the judiciary branch has the power to say what is and is not legal. The president’s claims of legality were based not on a judge's opinion, but the opinion of the Justice Department. While the Justice Department may provide support for the president’s belief that the TSP was legal, Justice’s opinions are by no means binding, nor do they carry any weight as anything more than advice. When the president claims that he assured telecommunications companies that the program was legal, keep in mind that his assurance was not legally binding.
FISA is too out of date to be useful
Even though the Foreign Intelligence Surveillance Act (FISA) was signed into law in 1978, it has been amended as technology has progressed, including in the USA PATRIOT Act.
FISA takes too long to work and is too cumbersome in this post-9/11 world
Actually, FISA currently permits the government to engage in foreign intelligence surveillance for up to three days before requiring a warrant. The Bush administration would like to paint a picture of FISA as requiring that mountains of paperwork be tackled before surveillance can begin, resulting in the loss of valuable intelligence due to bureaucracy. This simply isn’t true. The authors of FISA understood that some surveillance would need to be immediate, and they inserted provisions for such surveillance. The administration can begin the process of surveillance first and then begin the process of obtaining a warrant.
Fat-cat class-action lawyers stand to benefit from lawsuits against telecom companies, so lawsuits against telecom companies are morally unjustified
Giant private law firms and not involved in these cases, in which some 40 Americans have sued AT&T, Verizon, and others based on their belief that those companies gave their private information to the government without a court order. It is civil liberties groups like the ACLU and the Electronic Frontier Foundation that are filing these suits on behalf of petitioners who believe they were illegally wiretapped. The ACLU and EFF do not bill their clients $500 an hour; indeed, they don’t bill them at all. The organizations filing these suits may recover court costs, but those reflect only the cost of going through court proceedings. These companies will not make a profit off of these cases. There is no money to be made here; if there were, then you can believe giant private law firms would be involved.
Telecom companies were acting in “good faith,” so the lawsuits are morally unjustified
Whether or not telecom companies acted in good faith is irrelevant. They broke the law. And they didn’t do it unwittingly. The administration approached several telecom companies about voluntarily wiretapping, including AT&T, Verizon, and Qwest. Only Qwest declined to assist the government, since it thought the program was illegal and might open the company up to lawsuits. It doesn’t make sense that AT&T’s and Verizon’s lawyers didn’t think the same thing. The telecom companies knew that the legality of the program was questionable, so they must have been offered something by the administration that outweighed the damage that could be caused by lawsuits.
If we don’t grant immunity to telecom companies, they’ll never help the government again
A FISA warrant compels a telecom company to assist the government in foreign intelligence surveillance, if requested. Moreover, if the TSP had occurred under the auspices of FISA, we wouldn’t be arguing about immunity; FISA grants immunity to those who assist the government under a FISA warrant. There are protections within the U.S. Code that prevent a telecommunications provider from voluntarily surrendering subscriber information to the government. If the issue is, "They'll never voluntarily surrender information ever again," then all the better! They shouldn't have been doing that in the first place; the government should have obtained a FISA warrant.
We need the Terrorist Surveillance Program to fight terrorism
We have no idea whether or not we need the TSP, as we do not know what its efficacy is beyond the protestations of the Bush administration that it has averted terrorist attacks. Additionally, there are documents that suggest that the administration wanted to begin warrantless surveillance of Americans well before the September 11 attacks. The only reason that surveillance didn't proceed was because there was no reason important enough to justify it. With the September 11 attacks, the administration could justify warrantless wiretapping on national security grounds, as it has done repeatedly since we found out about the TSP.
We’re dealing with a different enemy, here, and we need different tools
FISA allows surveillance of any foreign agent, regardless of whether or not he is associated with a country's government. Terrorists still use phones as they always did. Not requiring a warrant for surveillance does not make us better at intercepting terrorists’ calls. The terrorists who plotted to blow up a plane in the U.K. using liquid explosives were discovered through old-fashioned, non-warrantless police-work.
Democrats are “playing politics” with the nation’s national security
Back in February, Senate Democrats wanted more time to deal with the Protect America Act, a temporary enlargement of surveillance powers that were set to expire soon. In press conferences, President Bush said that Democrats had had ample time to review all the paperwork surrounding the PAA, and that they should stop dragging their feet and make the law permanent. In fact, Democrats had been requesting key documents for months, and the administration saw fit to give them the documents about a week before PAA was set to expire. It could be that the administration intentionally didn’t want to give the Senate enough time to evaluate the program, and then go on TV and suggest that they had been lazy for six months. Democrats were also haranguing about a provision that would grant retroactive immunity to telecom companies that had aided in the TSP.
In response to Bush's insistence that the law not be allowed to expire, since it was so important for national security, Democrats offered to extend PAA for another thirty days. If Bush thought that the PAA was so important to protecting American security, it stands to reason that he would want it to be in force and would sign such an extension to the law. In fact, Bush threatened to veto any temporary extension that crossed his desk, insisting that the Senate’s time was up and it had to make the law permanent. A White House insider said that this was a calculated political move, designed to make the Democrats appear soft on national security and force their hand in the way the president wanted. While the Democrats were willing to extend PAA, it was President Bush who refused such an extension so he could go back later and say that the Democrats weren’t serious about national security. It sounds more like President Bush was, in his own words, “playing politics.”