Presidential Power:
Eavesdropping, Terrorism & American Freedoms

By Alan Shapiro

To the Teacher:

Are your telephone calls, e-mails and internet use part of the huge secret surveillance and data collection program inaugurated by President Bush soon after 9/11? Perhaps. Should they be? These questions are at the heart of a controversy that began in December 2005 when the public first learned that such a surveillance program does in fact exist.

The first two student readings below provide fictional case studies that raise constitutional and other questions. The other two readings further explore these questions using relevant excerpts from the Constitution, Congress' September 2001 authorization of the president to defend against future terrorist attacks on the United States, and the Foreign Intelligence Surveillance Act of 1978 and its background. Discussion questions, debate subjects, writing assignments and citizenship activities follow.

Student Reading 1:
Police search John Smith's apartment
(fictional case study)

John Smith lives in a neighborhood where drug dealers and drug addicts are common. One of his friends was recently arrested and later sentenced and jailed for dealing. His brother Fred is in drug rehab. But John has never been accused of using or dealing.

The police have been ordered to crack down on the drug scene in John Smith's neighborhood. One night he and his friends are partying in his apartment. They are drinking beer and listening to music and dancing. There is a knock at the door. "This is the police. Open the door."

John opens the door. Three police officers, including a sergeant, are standing there. The sergeant shows his badge to John and says, "We want to search the house." John answers, "No way."

The police pull out their guns, push Smith aside and enter the house. Smith's friends sit where they are. The music keeps playing. One officer, his gun in hand, watches them while the other two open drawers, look behind curtains, and search shelves, then move on to other rooms in the apartment.

When they have finished their search, the police leave without comment or arrests.

For introductory discussion

1. Does John Smith have to open the door? Does he have to let the police in to search the house? Why or why not?

2. Have Smith's rights been violated by police behavior? What rights?

3. Assume that Smith has not been using or dealing. Even if he is irritated, should the police raid be of any concern to him? Why or why not?

Following the introductory discussion, have students read the Fourth Amendment to the Constitution (Note: All direct quotes from this and other documents appear in italics.)

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.

For further discussion

1. What does your right to be secure in each of the following mean to you? Your person? Your house? Your papers? Your effects?

2. How would you define unreasonable searches? Reasonable seizures?

3. What is a warrant? How is one obtained? What is probable cause and why is it required to obtain a warrant?

4. Define an oath. Define an affirmation.

5. Why must a warrant require a description of the place to be searched? Why must it include a description of the people or things to be seized?

6. How, if at all, has your reading and discussion of the Fourth Amendment affected your answers to the introductory questions?

Student Reading 2:
The National Security Agency eavesdrops on Bill Simmons
(fictional case study)

Bill Simmons is a corporate customer of AT&T. That company provides him with telephone and high-speed internet service. As an executive of a multinational agricultural firm, he makes and receives frequent calls from customers and friends in the Middle East and elsewhere. He communicates regularly for business and personal purposes by e-mail and conducts bank and other transactions over the internet.

On December 16, 2005, Simmons reads a report in the New York Times stating that soon after 9/11 President Bush authorized the National Security Agency (NSA) to arrange a secret program with AT&T, Verizon and BellSouth, the three biggest U.S. telecommunications companies. The Bush program allows the NSA to collect, without court-approved warrants, enormous amounts of data on communications between Americans and people around the world as well as on communications within the U.S.

The program does not necessarily involve the NSA in listening to or recording telephone calls or reading the content of e-mail and internet traffic. But the data received by the NSA does enable it, for example, to analyze customer traffic--for example, who calls or writes to whom and how frequently.

Of the major telecommunication companies, Qwest was the only one to refuse the government request, apparently because of legal concerns about surveillance without warrants.

Simmons concludes that almost certainly the government now has a lot of information about his business dealings and relations with friends based on the patterns of his daily communications.

For discussion

1. Does President Bush have the right to authorize secret data collection of Americans' telephone calls, e-mails and internet communications? Why or why not?

2. Have any of Bill Simmons' rights been violated--those under the Fourth Amendment, for example? Why or why not? Should he sue AT&T? Why or why not?

3. Assume that Simmons isn't involved in terrorism. Even if he is irritated to learn that the government has information about his business and personal affairs, should this be of any concern to him? Why or why not?

Student Reading 3:
The president's case for spying, FISA and the Constitution

Three days after the New York Times' December 16, 2005, report that President Bush had authorized the National Security Agency to arrange a secret surveillance program with leading telecom companies, Bush was asked at a press conference, "Why did you skip the basic safeguards of asking courts for permission for the intercepts?"

He responded, "Right after September 11, I knew we were fighting a different kind of war, and so I asked people in my administration to analyze how best for me and our government to do the job people expect us to do, which is to detect and prevent a possible attack. That's what the American people want. We looked at possible scenarios, and the people responsible for helping us protect and defend came forth with the current program because it enables us to move faster and quicker. And that's important." (12/19/05)

He also said that one week after 9/11, Congress authorized him to use force to prevent terrorism against the United States. In doing so, he declared, Congress also gave him the "inherent power" to suspend regulations of the Foreign Intelligence Surveillance Act (FISA) of 1978, which require court approval for spying. Bush also argued that the Constitution also provides him, as commander-in-chief, with inherent power for his NSA actions. But critics, including some members of Congress who voted to authorize his use of force, disagreed.

Key documents in the surveillance controversy follow.

Congressional Authorization for the Use of Military Force, 9/18/01:
The president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The Foreign Intelligence Surveillance Act

During the Vietnam War, Americans learned that President Richard Nixon had ordered the CIA and the NSA to eavesdrop on American citizens who were involved in the anti-Vietnam War and civil rights movements. They included singer Joan Baez and the family of Martin Luther King Jr. In 1972 the Supreme Court ruled unanimously against electronic surveillance of domestic organizations. Justice Lewis Powell, a Nixon appointee, wrote that Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillance may be conducted solely within the discretion of the executive branch.

After additional intelligence misconduct was discovered during the Watergate investigation that led to President Nixon's resignation, Congress passed the Foreign Intelligence Surveillance Act (FISA) in 1978. It created a special court made up of seven federal district court judges from around the U.S. They review all requests to conduct electronic surveillance. The Justice Department must also review these requests, the attorney-general must certify them and they must be reported to the House and Senate committees on intelligence.

In the event of an emergency that makes an immediate surveillance application to the FISA court impossible, the surveillance may take place but application for it must be made within 72 hours.

FISA requires that the target of surveillance be a foreign power or an agent of a foreign power and that the purpose of the surveillance is to obtain foreign intelligence information.

FISA permits the surveillance of people within the U.S. but only if the target is an agent of a foreign power or a terrorist. The FISA court must ensure that any request for such surveillance would not endanger the individual's Fourth Amendment or First Amendment rights. Surveillance within the U.S. requires that the government first show probable cause that a crime has been or is about to be committed.

On January 17, 2007, the White House announced that it had reached an agreement with the FISA court on control over the NSA surveillance program and would halt eavesdropping without warrants on Americans. The exact nature of this agreement has not been made public. The president continues to say that he has the inherent power to override FISA, but he also supports a bill that would give him broader authority under it. "How can we begin to consider FISA legislation when we don't know what they are doing?" asked Jerrold Nadler, Democrat of New York, who heads the House judiciary subcommittee. (New York Times, 6/8/07)

The Constitution:
Before he enters on the execution of his office, he (the President) shall take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the office of president of the United States, and will to the best of my ability, preserve, protect and defend the constitution of the United States." Article II, Sec 1

The President shall be commander in chief of the army and navy of the United States….
Article II, Sec. 2

The president, vice-president, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. Article II, Sec. 4

First Amendment to the Constitution:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

For discussion

1. Do you agree with President Bush that Congressional Authorization for the Use of Military Force gave him the "inherent power" to suspend FISA regulations? Why or why not?

2. Do you agree with President Bush that the Constitution gives him the inherent power to suspend FISA regulations? Why or why not?

3. Why do you suppose that the Nixon administration eavesdropped on Joan Baez, the King family and other anti-war and civil rights activists? Did it have the constitutional authority for doing so? Why or why not?

4. What, if anything, does the Supreme Court decision of 1972 have to do with the NSA surveillance program?

5. FISA continues to be U.S. law. Does it permit surveillance of Bill Simmons' telephone conversations, e-mails and internet traffic? Does such surveillance endanger his Fourth Amendment and/or First Amendment rights? Why or why not?

6. A major argument for the NSA surveillance program is that it will help to protect Americans against terrorist attacks. If you agree with this argument but think FISA prohibits such surveillance, what do you think President Bush should do? Congress? Why does Congressman Nadler think his House subcommittee is unable to consider FISA legislation?

Student Reading 4:
The continuing surveillance controversy

Immediate controversy followed news of President Bush's surveillance program without warrants. Senator Russell Feingold (D-Wisconsin) said, "The president believes he has the power to override the laws Congress has passed. He is a president, not a king." Congressman Dan Burton (R, Indiana) said, "The liberal media and its liberal allies are attacking the president" for spying tactics that are legitimate and legal. "The fact is the president is defending the United States of America." (www.washingonpost.com, 12/17/05)

For the past 18 months the debate has continued. On August 17, 2006, a Michigan district court judge, Ann Diggs Taylor, ruled against President Bush's claim that he has the inherent power to override FISA. She wrote: "It was never the intent of the Framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights." (Boston Globe, www.boston.com, 8/18/06)

On January 31, 2007, a federal appeals court heard arguments to uphold or reverse the Taylor decision. As of the end of May, it had not announced its decision, which may, whatever the result, be appealed to the Supreme Court.

The most dramatic recent development came on May 15, 2007, when James Comey, former U.S. deputy attorney general, appeared before the Senate Judiciary Committee. Comey testified that in early 2004 he and others in the Department of Justice had reviewed the top secret eavesdropping program.

Comey said that on March 10, 2004, he met with then U.S. Attorney General John Ashcroft. They agreed that they could not certify the legality of the NSA surveillance program authorized by President Bush for the previous two years. Later that day Ashcroft was taken to a hospital's intensive care unit with a severe gall bladder attack. Comey informed the White House that Ashcroft and he regarded the program as illegal. At the hospital John Ashcroft's wife, Janet Ashcroft, refused a telephone request for a visit to her husband by Andrew Card, White House chief of staff, and Alberto Gonzalez, presidential legal counsel.

A second call was made to Janet Ashcroft. Comey testified, "I have some recall that the call was from the president himself, but I don't know for sure. It came from the White House." Janet Ashcroft now agreed to the visit from Card and Gonzalez. Comey informed FBI Director Robert Mueller, who agreed with the Ashcroft-Comey decision. Comey rushed to the hospital. Mueller ordered FBI agents to prevent any attempt to remove Comey from Ashcroft's room. Card and Gonzalez arrived. The latter asked Ashcroft to certify the program. Ashcroft lifted his head from the pillow, expressed his agreement with Comey and added, "But that doesn't matter because I'm not the attorney general." He pointed to Comey, acting attorney general during his illness. Card and Gonzalez did not acknowledge Comey's presence and walked out of the room.

Comey testified, "I was very upset. I was angry. I thought I just witnessed an effort to take advantage of a very sick man." He and Mueller, as well as others in the Justice Department, threatened to resign. The next day the White House reauthorized the program without legal certification from the Justice Department. But later that day, after meetings with Comey and Mueller, President Bush agreed to unspecified changes they accepted. In the following months Ashcroft, Comey, and other Justice Department officials did resign.

After the NSA surveillance program was revealed, President Bush said that from its outset it had been reviewed every 45 days by the Attorney General and the White House legal counsel. After that legal review, he had then reauthorized the program. Neither the president nor others have given specific reasons why these frequent reviews were necessary. One speculation is that the telecommunications companies wanted reassurance that they would not be open to customer lawsuits.

The president, Comey and others have not explained why the Attorney General's review in 2004 resulted in a finding of illegality. In August 2006 Gonzalez, who replaced Ashcroft as Attorney General, stated in sworn testimony to Congress that there was no significant disagreement within the Department of Justice over the warrantless eavesdropping program.

Publicly, the Bush administration has not revealed any changes in the program, the numbers of Americans under surveillance, the standards used to determine whose communications should be intercepted, or any terrorist plots that have been disrupted.
During 2006, the government made more than 2,000 requests to the FISA court for electronic surveillance and physical searches. None were rejected. (www.cnn.com, 5/1/07)

In April 2004 during the presidential election campaign, President Bush said in Buffalo: "Now, by the way, any time you hear the United States government talking about wiretaps, it requires-a wiretap requires a court order. Nothing has changed, by the way. We're talking about chasing terrorists. We're talking about getting a court order before we do so….constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland because we value the constitution."

At this time, the president's surveillance program had been in effect for more than two years. He made these comments about a month after the events described by James Comey.

After his surveillance program was revealed, the president was asked at a news conference whether he thought there should be limits on the president's powers during wartime, especially since the war on terror was of indefinite length. Would there be a more or less permanent expansion of "the unchecked power of the executive in American society?" President Bush answered, "To say 'unchecked power' basically is ascribing some kind of dictatorial position to the President, which I strongly reject."

For discussion

1. How, if at all, does the Taylor decision affect your view of whether or not President Bush has the right to authorize secret data collection of communications by Americans?

2. Why do you suppose that the Bush-FISA court agreement has not been made public? Should it be? Why or why not?

3. If you support the president's effort to get broader authority under FISA, what broader authority do you think he should get? Why? If you oppose the president's effort, why?

4. According to Comey, President Bush operated a NSA secret surveillance program with crucial help from AT&T, Verizon and BellSouth without warrants or authorization from the FISA court for two years. Was this a federal crime? Why or why not?

5. Why do you suppose Card and Gonzalez went to see Ashcroft to ask for certification of the spy program when they must have known that Comey had become the acting attorney general? What questions do students have about Comey's testimony? How might these questions be answered? What difficulties might there be in answering them?

6. At a press conference, NBC reporter Kelly O'Connell asked President Bush whether he ordered Card and Gonzalez to the hospital on the night of March 10. The president answered: "I'm not going to talk about it. It's a very sensitive program." (The Nation, 6/11/07) How do you evaluate this response?

7. Why do you suppose that Gonzalez, in sworn testimony to Congress, stated there was no significant disagreement within the Justice Department about the surveillance program?

8. How do you evaluate President Bush's remarks in Buffalo during the 2004 presidential campaign? His response to a reporter's question about "unchecked power"?

For debate

1. Resolved, that Congress should repeal the Foreign Intelligence Surveillance Act and empower President Bush to continue the National Security Agency surveillance program

2. Resolved, that President Bush should be impeached for violation of the Foreign Intelligence Surveillance Act and/or the Constitution.

For writing

Imagine that you know your telephone conversations, e-mails and internet activities are being intercepted by the government. Would that information affect what you say and write, how you say and write it and your internet activities? Why or why not? Write a reflective essay in which you consider your answers.

Write a well-developed essay in which you discuss 1) differing points of view on the surveillance program, 2) what you think of the program and 3) why.

For citizenship

Write letters and e-mails to President Bush and to your senators and representatives in which you express your view of the president's surveillance program.

Is your telephone company one of those named in the readings? If so, write a letter or e-mail to its CEO in which you express your view of its participation or non-participation in the surveillance program.

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: lmcclure@morningsidecenter.org.

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