Response to illegal wiretap from Rep. Shays

Here is the response to an email I sent to Representative Christopher Shays in January regarding the presidents wiretapping activity. Good to see he could respond in such a timely manner (about 1/8 of his total term)!!!

Dear Jeffrey:
Thank you for contacting my office expressing opposition to President Bush's authorization of wiretaps against suspected al Qaeda terrorists without a warrant. I appreciate you taking the time to share your views with me.

The Administration has argued, and it may be right, that the use of these wiretaps are within the President's constitutional authorities as Commander-in-Chief. It seems to me the President is on weaker ground by asserting he maintains statutory authority based on S.J.Res. 23. This resolution, which I supported when it passed on September 14, 2001, gives Congressional authorization to the President 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."

On December 19, 2006, General Michael Hayden, former Director of the NSA and currently the Deputy National Intelligence Director stated this program has been successful in detecting and preventing terrorist attacks in the United States. General Hayden is a serious, experienced and non-political military officer. When an officer of his rank says this program has detected and prevented attacks, my inclination is to give considerable weight to that assessment.

On January 23, 2006, General Hayden took the time to further explain the wiretapping program to the American public. He clarified that, "The intelligence community has neither the time, the resources nor the legal authority to read communications that aren't likely to protect us. And NSA has no interest in doing so." He further explained that the program is not a "drift-net" over vast communities. Rather it is a targeted campaign to observe communications that are judged by American intelligence professionals, not political appointees, to be connected to al Qaeda.

U.S. Attorney General Alberto Gonzalez has also described the scope of this program, which is designed to intercept the contents of communications where one party to the communication is outside the United States. According to Attorney General Gonzalez, these intercepts are only conducted when intelligence professionals believe there exists a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.
Some have raised the question of why the President did not act in accordance with the Foreign Intelligence Surveillance Act (FISA) and request warrants through its court. While I am sensitive to the classified nature of the program, it seems to me if the President was not going to follow FISA he should have made an effort to amend it.

The challenge with the FISA process is that before the government can get a warrant, the Justice Department must put together a case and demonstrate probable cause that the facts and circumstances identify the target is a terrorist. The difficulty with this process is that the Justice Department must already have in hand evidence that someone is a connected to terrorism before they seek a warrant. It seems to me there are cases in which the United States has a suspicion that someone is communicating with al Qaeda, but that the suspicion may not meet the threshold of "probable cause." Not wiretapping a suspected terrorist whose case falls into this gray zone could put our nation at risk.

I believe with more power comes the need for more oversight. It is important Congress thoroughly review the NSA program and its legality. I am pleased the Senate Judiciary Committee is already conducting an investigation and the House and Senate Intelligence Committees are reviewing it. The use and scope of presidential powers, particularly in wartime, has been a heavily debated issue in our highest courts since the founding of our nation. It seems to me this issue could likely wind up before the Supreme Court to rule on.

The next terrorist attack on our nation is not a question of "if", but "when." The President's first responsibility is to protect the nation from harm, and I want him to exercise all reasonable powers to do so. Many Americans don't think of our nation being in a war, but we are confronted by a real enemy, identified by the 9/11 Commission as Islamist terrorists, that seeks to destroy us.

We can no longer think in terms of the Cold War paradigm of containment, reaction and mutually-assured destruction. The modern threat requires us to detect and prevent attacks. In addition, we will need to take preemptive action and sometimes do it unilaterally.

The protection of our civil liberties is of utmost concern to me. That is why Representatives Carolyn Maloney, Tom Udall, and I have offered H.R. 1310, the Protection of Civil Liberties Act, which would reconstitute the Privacy and Civil Liberties Oversight Board as an independent agency within the Executive Branch. It would subject all appointments to the board's membership to Senate confirmation, and limit the board's partisan composition to three members from the same political party. Finally, it grants the Board subpoena power.

Please do not hesitate to contact my office again. Because mail is delayed by Anthrax screening, e-mails, phone calls, faxes, and in-person visits are the most effective ways to communicate with my office. I also have recently begun a periodic e-newsletter and would be happy to send it to you. To request this e-newsletter, and for other information, please visit my website at www.house.gov/shays.

Sincerely,
Christopher Shays Member of Congress