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The administration's wiretapping program appears to violate the Fourth Amendment's guarantee that "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...."<3> The original impetus for the Bush program reportedly came from General Michael V. Hayden, then head of the National Security Agency, which collects information in the name of national security, and Bush's nominee to head the CIA. Hayden told a receptive White House that the NSA counsel had said the program was legal. The government claims that if a member of al-Qaeda, or of a group "supportive of" al-Qaeda, calls or e-mails someone in the United States, or if someone in the US initiates the conversation, the government, which could already tap the suspected terrorist, can now tap the US resident as well. This raised the question whether that US citizen's other calls would be tapped.
In a press briefing given at the White House by Gonzales and Hayden on January 19 this year, Gonzales emphasized that "one party to the communication has to be outside the United States" and insisted there has to be "a reasonable basis" for concluding that one party to the communication is affiliated with or "supportive of" al-Qaeda, an extremely vague standard. And the administration is now making that decision, not the FISA court. Gonzales, moreover, has told congressional committees that he couldn't rule out that the President has the authority to wiretap purely domestic calls. Asked why the administration didn't go to Congress for authorization to wiretap domestic calls in terrorism cases without seeking a warrant, Gonzales replied: "We have had discussions with Congress in the past—certain members of Congress —as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible." In other words, having been told that Congress was unlikely to authorize the warrantless wiretaps of domestic calls, the administration went ahead and did the tapping.
The Bush administration's reaction to the revelations about the wiretapping program has been to attack the leaks. In his statement acknowledging the wiretapping program, Bush said, "The fact that we're discussing this program is helping the enemy." In an attempt to limit congressional oversight, the administration tried to restrict the number of members of Congress it would brief on such matters. According to a presidential directive issued quietly after September 11, officials were to discuss highly classified information with only the Republican chairman and the ranking Democrat on the Senate and House Intelligence Committees—committees that were established to conduct oversight on intelligence activities following the CIA scandals in the mid-Seventies—as well as the Republican and Democratic leaders of each chamber (a total of eight people) and not with the full intelligence committees.
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