The surveillance state unveiled: President Bush and adherents to his viewpoint have defended the idea that the government has a right to wiretap, but their assertions do not stand up to scrutiny.

President Bush has inaugurated the largest surveillance state in human history, ordering the NSA to wiretap millions of Americans' telephone calls and e-mails abroad (according to the New York Times) and collecting the telephone records of as many as 200 million Americans (according to USA Today). Moreover, the FBI acknowledged searching the personal effects of more than 3,500 Americans without a court search warrant (according to the Associated Press) using a procedure called a "National Security Letter" under the Patriot Act. And many news sources have hinted that these revelations are merely the "tip of the iceberg" of the size of the actual surveillance conducted against Americans by the same Bush administration that had until December 2005 claimed at least seven times publicly that it sought a court warrant before conducting any search.

Following is an analysis of the Bush administration's public rationale for conducting warrantless surveillance.

"Trust Your Leaders"

"We're not mining or trolling through the personal lives of millions of innocent Americans. Our efforts are focused on links to al Qaeda and their known affiliates."

--President George W. Bush May 11, 2006

President Bush made the statement above even though he and his administration spokesmen have not denied the accuracy of USA Today's report on May 10, which revealed that the NSA is storing the telephone call logs of as many as 200 million Americans. Although administration officials repeatedly use the term "Terrorist Surveillance Program" to imply that they are only spying on known terrorists, the reverse is true. Clearly, the administration is mining and trolling through the personal lives of hundreds of millions of innocent Americans--otherwise President Bush is accusing 200 million Americans of being "links to al Qaeda and their known affiliates."

President Bush's claim above that he is not "trolling through the personal lives of millions of innocent Americans" is no more credible than his earlier claim that the government does not tap the telephone calls of American citizens without a court warrant: "Now, by the way, any time you hear the United States government talking about wiretap, it requires--a wiretap re quires 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." (April 20, 2004, at Kleinshans Music Hall in Buffalo, New York.)

Generally, governments spy upon their enemies. It's not worth expending resources to spy on friends. The revelation that the Bush administration is spying upon all Americans does not bode well for continued freedom in the United States.

Constitutional Authority

"The President's authority to authorize the terrorist surveillance program is firmly based ... in his constitutional authority as Commander-in-Chief."

--Justice Department policy paper "The NSA Program to Detect and Prevent Terrorist Attacks, Myth v. Reality" January 27, 2006

The president's "commander-in-chief" powers under Article II of the U.S. Constitution simply make the president commander of the armed forces, not commander of civilians or a chief legislator empowered to spy upon whomever he chooses. The relevant clause of the U.S. Constitution states simply: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." It gives the president no power over civilians, and no power to wage war, which is vested solely with the Congress.

Even if we assume the president was given the power to authorize warrantless surveillance of American citizens under his "commander-in-chief" authority in the U.S. Constitution, the Fourth Amendment took that power away. The Fourth Amendment--which overrode any constitutional provisions contrary to it--banned all searches of people's private effects that did not include both probable cause and a court warrant supported by an oath. The Fourth Amendment reads in its entirety: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

It's worth noting that the Bush administration has employed the same old trick that liberals use to negate the Second Amendment right to keep and bear arms: negate the amendment by intentionally misrepresenting the introductory segment. Consider this exchange between reporters and the new CIA director Gen. Michael Hayden on January 23, 2006:

QUESTION: Jonathan Landay with Knight Ridder. I'd like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use--

GEN. HAYDEN: No, actually--the Fourth Amendment actually protects all of us against unreasonable search and seizure.

QUESTION: But the--

GEN. HAYDEN: That's what it says.

QUESTION: But the measure is probable cause, I believe.

GEN. HAYDEN: The amendment says unreasonable search and seizure.

QUESTION: But does it not say probable--

GEN. HAYDEN: No. The amendment says--

QUESTION: The court standard, the legal standard--

GEN. HAYDEN:--unreasonable search and seizure.

Of course, if all the Fourth Amendment did was to prohibit the government from conducting searches that officials don't find "reasonable," then the amendment is less than worthless. Why even bother mentioning "probable cause," "warrants," and "oath or affirmation" if the government is given all the power it needs to conduct any search it deems "reasonable"? Like the Second Amendment's preamble about a "well-regulated militia," the first clause of the Fourth Amendment explains the reasoning for the amendment's subsequent specifics. The plain construction of the Fourth Amendment is to define as "reasonable" only those searches which involve court "warrants" based upon "probable cause" supported by an "oath or affirmation."

"Legal" Argument

"Congress confirmed and supplemented the President's constitutional authority to authorize this program when it passed the AUMF [Authorization for the Use of Military Force]. The AUMF authorized the President to use 'all necessary, and appropriate military force against those nations, organizations, or persons he determines planned, authorized, committed, or aided in the terrorist attacks that occurred on September 11, 2001.'"

--Justice Department policy paper "The NSA Program to Detect and Prevent Terrorist Attacks, Myth v. Reality" January 27, 2006

For the Bush administration to claim that to spy on virtually all American citizens' phone calls, phone bills, and e-mail messages constitutes using "force" against terrorists who "planned, authorized, committed, or aided in the terrorist attacks that occurred on September 11,2001" requires that a person suspend an understanding of the English language, or alternatively that the administration is afflicted with a paranoia against the people it swore an oath to serve. Besides, if the Fourth Amendment bans warrantless searches--and the plain text of the amendment clearly does--Congress has no more power to authorize such searches than the president does on his own power.

"Practical" Needs

"After September the 11th, I vowed to the American people that our government would do everything within the law to protect them against another terrorist attack.... [I]f al Qaeda or their associates are making calls into the United States or out of the United States, we want to know what they are saying."

--President George W. Bush in a May 11, 2006 press conference

This "practical" argument is misleading, and it is an argument for lawlessness. If the president or one of our spies knows al-Qaeda is going to call the United States, then he will have no trouble getting a court warrant with his probable cause. The Foreign Intelligence Surveillance Act (FISA) allows the president to conduct instantaneous searches of suspected terrorists without a court warrant, so long as a court warrant is obtained within 72 hours after beginning the surveillance.

In sum, nobody is arguing that the United States should not monitor al-Qaeda calls to the United States. The Bush administration only faces problems with wiretapping calls when the calls are probably not being made by terrorists--when the executive branch goes on a fishing expedition with taps on all Americans' phone lines. Thus, when the president argues he needs warrantless searches in order "to know what they are saying," he is deliberately misleading the American people. He can wiretap al-Qaeda at any time with probable cause.

"FISA Isn't Fast Enough"

"FISA /Foreign Intelligence Service Act] requires the Attorney General to determine in advance that a FISA application ... will be approved by the court before an emergency authorization can be granted, and the review process itself can and does take precious time."

--Justice Department policy paper "The NSA Program to Detect and Prevent Terrorist Attacks, Myth v. Reality" January 27, 2006

In this case, the Bush administration is trying to have it both ways. First, it claims its surveillance program is narrowly defined to known al-Qaeda contacts (in the words of this same memo: "The NSA activities described by the President are narrow in scope and aim"), but then the quote above says that the government is monitoring far too many calls for the Attorney General and other parts of the Justice Department to manage through the FISA process. The truth is that calls from terrorists are few, and they can be managed through the FISA court "probable cause" warrant process that follows Fourth Amendment guidelines. On the other hand, massive fishing expedition-style surveillance of tens of millions of Americans--the vast majority of whom are not terrorists--would make getting warrants cumbersome as well as violate the whole intent behind the Fourth Amendment.

"Phone Records Aren't Private"

"IT]hose kinds of records do not enjoy Fourth Amendment protection. There is no reasonable expectation of privacy in those kinds of records."

--Attorney General Alberto Gonzales in a May 23, 2006 press conference

The Bush administration's defense of its massive phone-record surveillance against, according to USA Today, as many as 200 million Americans, is beginning to take the form of absurdity. Attorney General Gonzales' argument that Americans have no right to expect privacy in their phone calling records can be refuted with the following question: would you be comfortable if any one of your neighbors--or your employer--could purchase your telephone records from the telephone company for $5? Even if one does not make calls to "900" number sex lines or conduct other socially embarrassing transactions over the phone, there are many reasons people want telephone privacy. For example, most people would not be comfortable with an employer accessing their telephone calls to competitors as they conduct a search for a new job. Just as those phone calls are none of the employer's business, it's none of the government's business either.

As "evidence" that people have no legitimate expectation of privacy in phone records, Bush administration supporters are quick to cite Supreme Court rulings, such as Smith v. Maryland in 1978, which are consistent with the Bush policy. But conservatives were once quick to decry activist courts. Why is this "conservative" president, as well as his administration's supporters, suddenly citing these same activist courts as authorities over the strict construction of--and the clear language of--the U.S. Constitution (and, in this instance, common sense as well)?

"Only Terrorists Fear Surveillance"

"If you are not a terrorist, you have nothing to fear."

--Common rebuttal to criticisms of surveillance programs on the Internet

Although the Bush administration has not publicly made this argument, it is a popular cliche among those people who have given up on the concept of living under law or a Constitution.

It's worth asking people who say that they've got no problem with the government monitoring their telephone calls: "Do you really think the federal government monitoring 200 million calls from children to their parents is really going to help stop terrorism?"

To allow the current administration to search phone-call logs, tap telephone calls, and monitor Internet traffic without warrants to look for terrorism is to authorize all future administrations to tap all phone calls without warrants for whatever reason they see fit. But even if we assume the unlikely fiction that all future presidents will not knowingly wiretap their political opponents like the Nixon administration did, the threat from the surveillance state remains from lesser officials who could use the information for the purposes of blackmail, stalking by sexual predators (several Homeland Security officials have been arrested for sexual assault against minors in recent months), and so on.

It is a misconception that government surveillance of innocents won't hurt those being monitored. Such surveillance has already hurt innocent Americans such as Walter Soehnge of Scituate, Rhode Island. Soehnge saw the payment to his JCPenney Platinum MasterCard disappear into the ether for months--because he paid off his $6,522 credit card balance. Homeland Security officials suspected Soehnge of being a potential "terrorist threat" because he had made a larger than usual payment on his credit card and suspended crediting his account until he made extensive inquiries and complained.

Whenever the government ignores the constitutional requirement of conducting searches only under "probable cause," abuses inevitably occur. As long as the Bush administration continues to insist upon ignoring the Constitution, more abuses will be bound to appear.