Introduction
Ever since the 9/11 attack in the US, the government has taken up stringent measures which, to say the least, are tough not only for terrorists but also for the general citizenry. Among the most controversial is government’s warrantless tapping of phone conversations that Americans may have with non-Americans. This is however justified by the fact that government only uses the intelligence gathered from such surveillance for security reasons. Although electronic surveillance has been part of United State’s intelligence gathering, for decades now, it has always been a contentious issue (Goldstein 468)
Essay Body
No laws in the United States constitution prohibited warrantless surveillance. In 1969 for example, the attorney general asserted that the president had the constitutional mandate to order electronic surveillance, with or without a court order, on any organization or individual whose activities were suspicious. In a 1972 case however, the Supreme Court, in a case involving the United States versus US district court, it was ruled that government must obtain court orders for domestic surveillance. The same however did not rule out the possibility that warrantless tapping would be carried out on foreign communication that was suspected to threaten the national security of the United States (Goldstein 468)
The Nixon administration was especially notorious for warrantless tapping but never in history did the administration disclose the surveillance records even in court. Some of the cases whose strong evidence was contained in the surveillance records were dropped since by their use, the government would have had to answer to allegations of warrantless tapping (Goldstein 468). The wide spread tapping during Nixon’s administration, however, over-sensitized most Americans against the use of telephones for the exchange of sensitive information. Under section 605 of the American constitution, tapping could be used for intelligence gathering but not as a law enforcement tool (Pallito & Weaver 161).
Just as unpopular for warrantless tapping was George Bush’s administration, whose tapping activities were done under the Terrorism surveillance program under NSA. The executive authorization of surveillance under Bush, however, went beyond tapping telephone conversations. It covered (and still does), emails, internet activities, cell-phone messages and other forms of communications that happen between parties within and without the United States (Miller 181). This form of surveillance was made legal with the passing of the 2007 ‘Protect America Act’.
The Bush administration had also scored another first by engaging the telecommunication companies, which provided government with recorded conversations held over their respective networks. Though such actions have no legal backing under the United States constitution, they just show the extent to which the government was stretching its surveillance.
The warrantless tapping in many cases beg the question whether it is legal for the government to spy on its citizens. As discussed earlier, surveillance on domestic suspects requires that the government get a warrant for the same. However, in some case, and where the government feels that the national security demands so, tapping can be done first and warrants taken later (Miller 182).
This is granted under the Foreign Intelligence Surveillance Act (FISA), which allows the government to tap telephones in cases that demand immediate action. The provision however states that the government should then acquire an approval for the tapping within 72 hours of the surveillance. The approval is obtained from secret FISA courts. According to Miller (183), the FISA programs, although approving most of the government requests for tapping, also run concurrently with NSA run program that used warrantless wiretapping.
Whether what the government does for security, surveillance and pursuit of the American enemies is legal, quite a sizeable percentage of American feel that warrantless tapping is an assault of individual rights, liberties and contravenes the right to privacy. However, the shift in these feeling is noticeable in time of crisis. In the wake of 9/11, for example, 54 percent Americans were -more than any other time- in support of telephone monitoring (Miller 184). Just before the 2008 general elections in the US however, the support for government surveillance on telephone conversations had waned considerably. 51 percent supported that government acquires warrant before tapping into international phone call between Americans and other nationals, while only 24 percent strongly supported warrantless wiretaps (Mellman group 1).
The two sides of the divide among Americans hold the view that should warrantless tapping be allowed to thrive, the president will have too much legal power to spy on Americans without the necessary checks and balances (Levy 2).
The argument states that, despite the need to protect the country from terrorism, the constitution need not be ignored for such to happen (Mellman group 2). On the counter argument however, some people believe that Congress should not tie the executive’s hands with too much legal red tape since America is on a global terrorism war. The former arguments suggests that requiring the president to seek warrants before wiretapping telephones would limit the government’s ability to gather intelligence hence jeopardizing the national security (2).
Before 1968, wiretapping was widespread and was widely used by the Federal bureau of Investigations (FBI), the AG and the US president albeit in opposition to the section 605 of the constitution (Pallito & Weaver 161). Presidents like Roosevelt, Truman, Eisenhower, Kennedy, Johnson, Nixon and lately Bush (II) have all upheld the warrantless tapping tradition that has become much ingrained in the American political culture albeit to the chagrin of a sizeable percentage of citizens.
To date, the constitution mandate of the president concerning warrantless surveillance is still upheld in the constitution despite the Omnibus Crime Control Act of 1968, which criminalized warrantless eavesdropping. In section 2511(3) of the same act, it is stated that the constitutional power of the president provides that he or she can take any measures that he or she feels necessary to protect the country against potential or actual attacks. According to Pallito & Weaver (166), this provision creates ambiguity about the president’s prerogative in matters of national security and even seems to suggest that warrantless tapping will continue being a part of American surveillance for much more time in the future.
Conclusion
The American constitution has guaranteed multiple rights and constitutional limits in the past to her citizens. The one area that the constitution has failed to guarantee clear legal provision is in government surveillance. This is largely because there lacks clear political will for or against warrantless tapping. One school of though maintains that government intervention is justified especially in matters of national security, while another thinks that these contravenes the rights and freedoms under which the American democracy is built. The result of government’s warrantless tapping is that American citizens now have lower expectations of privacy from the government.
This is however done half-heartedly, with the acknowledgement that the government’s actions serves to deter terrorism from the country. The citizenry thus make concessions on their privacy with the assumption that the rights lost may be repaid with improved security. However, this is not a matter of choice since the government cannot be sued for tapping international conversations of US citizens since the USA patriotic act renders the state immune from prosecution.
References
Goldstein, Robert. Political repression in Modern America from 1870 to 1976. Ed. Illustrated. Illinois: University of Illinois Press. 2001.
Levy, Robert. “Warime executive Power: Are Warrantless Wiretaps Legal?” 2006. Web.
Mellman Group. “Voters Vigorously Oppose warrantless wiretaps, Blanket warrants and telecom warranty”. The Mellman Group Research Based Strategy. 2007.
Miler, Michael. Is it safe?: Protecting your computer, Your Business and Yourself online. Ed. Illustrated. Pomona, CA: Que Publishing 2008.
Palitto, Robert & Weaver, William. Presidential Secrecy and the Law. Ed. Illustrated. Baltimore, Maryland: John Hopkins University Press. 2007.