The incoming Obama Administration will face a myriad challenges, but one of the most controversial is National Security Administration's warrantless wiretap program, which is integrally related to the Federal Intelligence Surveillance Act (FISA), the Patriot Act, and the Protect America Act of 2007, an amendment to FISA.  Recall that candidate Obama began his campaign with strong denunciations of the Bush Administration's interpretation of the FISA law as well as the implementation of the Patriot Act.  The early indications are that a President Obama might have revised his thinking.

Since so much of the heated controversy over this matter is embedded in emotion rather than fact, it's important to provide some historical context.  About a week after the 9/11 attacks,  Congress passed  a resolution titled Authorization for Use of Military Force Against Terrorists (AUMF), which authorized the president to "use all necessary and appropriate force against those nations, organizations, or persons he determined planned, authorized, committed, or aided the terrorist attacks...in order to prevent any future acts of international terrorism against the United States...".  It passed the Senate 98-0, and the House vote was 420-1.

The Bush Administration has argued that its use of warrantless wiretaps was sanctioned by AUMF.  However, once the New York Times disclosed the program in 2005, the administration moved to pass the Protect America Act of 2007, which, the president said, would restore FISA's "original focus" vis a vis privacy concerns, "so we don't have to obtain court orders to effectively collect foreign intelligence about foreign targets in foreign locations."  The bill passed the Senate 60-28, and the House vote was 227-183.

Among other key revisions to FISA, PAA substituted the requirement of a warrant with a system of extensive National Security Agency (NSA) controls.  However, the PAA required the NSA to inform the FISA Court of any warrantless surveillance within 72 hours.  More specifically, the bill allowed monitoring of all electronic communications within the United States without a court's order or oversight, so long as it is not targeted at one particular person "reasonably believed to be" inside the U.S.  It also clarified that monitoring communications between suspected terrorists and Americans was authorized only if intelligence officials had reason to believe it may provide evidence relevant to terrorist activities.

The legal controversy surrounding the NSA warrantless surveillance program involves two major categories, statutory interpretation and Constitutional law.  The former is the process of interpreting and applying legislation to the relevant facts in a given case; the latter is the body of law that governs the interpretation of the U.S. Constitution.  It includes the interface of federal and state laws and governance, the rights of individuals, and a variety of other issues.

At the core of the controversy is the application and interpretation of Title 18 U.S.C. (United States Code) 2511(2)(f), which states, in part, "the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in Title 50 U.S.C. 1801(f)...and the intercept of domestic [communications] may be conducted."  It's a little known irony that both proponents and opponents of the NSA program agree that it functions outside the procedural framework as defined by FISA.

Due to its transparently political motivations, the mainstream media studiously avoids examination of this kind of background analysis because a candid analysis would effectively undermine their cynical argument that the Bush Administration has circumvented the Constitution and abrogated our civil liberties.  One of the commonly held myths is that the legal standards concerning intelligence gathering are inadequate and susceptible to widespread abuse.  Since a search of the New York Times archives won't be of any help, we've linked to a report titled Legal Standards for the Intelligence Community in Conducting Electronic Surveillance, which was mandated under Intelligence Authorization act of 2000. 

Let's take a brief retrospective tour of this matter, all the way back to May of 1979, which is when President Carter issued Executive Order 12139, which permitted intelligence gathering without a warrant, provided it complied with Title 50 United States Code 1802(a).  That document requires the president, through the Attorney General, to certify that the focus target is a foreign entity, and that the so-called "minimization procedures" (which limit the exposure of innocents during the process) are adhered to.

Moreover, pursuant to Title 50 Section 1805 (which is referenced in 1802), an application to the appropriate judge must be made within 72 hours of the proposed surveillance, unless an "emergency situation" exists, which allows the surveillance provided a retroactive application is filed within 72 hours.  Given the burdensome nature of this process, as well as the media's cynical characterization of the administration's behavior in this matter, it may surprise readers to learn that the court approved dozens of these requests throughout the time that charges of warrentless surveillance occurred.  Indeed, the court approved 1,244 surveillance requests in 2004 and 2,072 in 2005, and each year that number increases.

Although it's unknown whether or how many warrantless wiretaps occurred, reviewing the seminal cases in the matter, in particular ACLU vs. NSA, the courts typically find the plaintiffs do not have standing because there's no evidence that the alleged spying occurred. 

The legal defense of President Bush's authority to conduct warrantless electronic surveillance was ably made by Attorney General Alberto Gonzales, in a January 2006 report.  Although it was debated among legal scholars, it didn't penetrate the mainstream media's hermetic world. and so most Americans' understanding of the legal issues is based exclusively on network television news, which has a notorious liberal bias.

Although President Bush made numerous speeches concerning the threat of radical Islam after 9/11, there's no question that he could have been more forceful early on in his acquittal of his decision to authorize warrantless wiretaps.  Despite those political missteps, if the American people were aware of the safeguards and oversight measures mandated in the NSA program, and in light of the manifest threat of another lethal attack on our soil, the vast majority would approve the president's decision. 

Moreover, despite its political grandstanding, Congress has consistently voted to support the program, and there is no evidence that any U.S. citizen's rights have been compromised.  Most critically, there have been no subsequent attacks on American soil since 9/11, and although skeptics may argue the NSA's program did not measurably contribute to that success, their anecdotal testimony is clearly tainted.

There's no question that the civic health of our Republic demands a that we abide by our Constitution, but it's also the case the Framers provided broad discretionary powers to the Executive, most cogently argued in the Federalist Papers, in particular, number 70.  That every president has employed those powers and, at times, tested their limits, is unambiguous, as is the fact that, in certain instances, they been imperfectly applied. 

If President-elect Obama can build upon the improvements made in the Protect America Act of 2007, so much the better, but, his historical criticism of the program notwithstanding, most observers believe he'll continue the NSA's program with modest modifications.