Expanding surveillance authority: the surveillance power demanded by President Bush would not necessarily provide any better protection from terrorism, but it would certainly expand executive branch power.(ON THE HOME FRONT)(George W. Bush)

On December 17 of last year, during his weekly radio address, President Bush confirmed reports by the New York Times and CNN that, following the 9/11 attacks, he had given the National Security Agency (NSA) authorization to eavesdrop on Americans communicating with people overseas. The president said that ordering such electronic surveillance without judicial warrants is "fully consistent" with his "constitutional responsibilities and authorities," and charged that the media exposure of this secret program is illegal and "damages our national security and puts our citizens at risk."

The NSA, which eavesdrops on billions of communications worldwide, is barred from domestic spying without a warrant, as required in the Fourth Amendment of the Bill of Rights. The Justice Department can get warrants from a special court called the FISA (Foreign Intelligence Surveillance Act) Court, a 10-judge panel established in 1978 expressly for that purpose. In emergencies, the NSA may even conduct domestic surveillance for 72 hours without a warrant. But by the end of that three-day period, it must obtain a warrant. Over the past nearly 30 years, the FISA Court has denied only a handful of the thousands of warrant requests. And there is no indication that the 72-hour emergency provision has been inadequate to deal with serious terrorist threats.

On August 17 of this year, U.S. District Judge Anna Diggs Taylor ruled that the president's warrantless searches are unconstitutional. The administration immediately appealed the decision and on October 4, a three-judge panel ruled that the NSA may continue its eavesdropping while awaiting a final ruling from the 6th Circuit Court of Appeals.

Interestingly, during the December 17, 2005 radio address, President Bush cited the case of 9/11 hijackers Khalid Al-Mihdhar and Nawaf Al-Hazmi as a prime example of the need for warrantless surveillance. This duo, he said, "communicated while they were in the United States to other members of al Qaeda who were overseas, but we didn't know they were here until it was too late." It would be ...