Analysis: Conservatives defend phone taps


WASHINGTON, Feb. 10 (UPI) -- Many conservative analysts have rallied to defend the Bush administration's program of monitoring, without court warrants, communications between U.S. residents and overseas individuals suspected of terrorist activity. But some remain skeptical about it.

Addressing a conference at the Heritage Foundation, a prominent conservative Washington think tank, on Thursday, speakers argued that the National Security Administration's Terrorist Surveillance Program was both a legitimate and necessary part of the War on Terror.


The TSP allows senior NSA officials to approve surveillance when there is 'reason to believe' communications may involve al-Qaida and its affiliates.

Since revelations in the New York Times on Dec. 16, 2005, this program has inspired vigorous debate. On Wednesday, the White House relented to demands for greater openness regarding intelligence gathering, and began briefing lawmakers.

Many observers argue the post-Sept. 11, 2001 global climate necessitates the TSP. Addressing the Heritage Center conference, R. James Woolsey, Senior Fellow for National Security Affairs at the Heritage Foundation and former Director of Central Intelligence argued the current enemy was very different from the ones faced during the Cold War. "That somewhat comfortable world is gone with the wind", he said.


Woolsey said that the United States should not be complacent about its ability to contain an adversary that desires a "worldwide caliphate which they think they can bring about through violent jihad".

The administration believes the War on Terror requires methods of intelligence gathering that go beyond the provisions of the Foreign Intelligence Surveillance Act of 1978. Under FISA, government officials had to prove to a secretive intelligence court that there was 'probable cause to believe' that an individual was involved in terrorism.

Woolsey presented the technological case in favor of the TSP. In a digital age, underpinned by cellular phones and worldwide internet access, he said it was "essential to understand the electronic battlefield of this new world order".

The Heritage speakers also argued in favor of the legality of the TSP. Todd Gaziano, Director of the Legal and Judicial Department at Heritage, said the establishment of this surveillance program falls within the president's remit as Commander in Chief.

Gaziano outlined three legal regimes for intelligence. The first concerns domestic criminal investigation and the second relates to the FISA provisions, which cover a state of 'Cold War'. The third holds that during periods of actual war, the President is obliged to intercept every possible enemy communication. Thus, the TSP is a legitimate program.


Furthermore, Gaziano argues that Congress has already authorized the TSP through its decision, in the aftermath of Sept. 11, 2001, to instruct the President to use all necessary force to defeat terrorism.

In light of this, Gaziano said President George W. Bush has "shown great restraint with TSP and we ought to be proud of that".

For those who assert the necessity and legality of the TSP, leaks and the ensuing public debate is infuriating. Gaziano argued Americans should trust confidential congressional hearings to monitor the administration's actions. "Detailed information about how the program works may be more helpful to our enemies", he said.

Since the media revealed the existence of the TSP, it has become a hot topic. The Bush administration initially refused to divulge details of the program, claiming it would compromise vital intelligence gathering.

This stance is supported by proponents of the TSP. Gaziano said "I hope only the intelligence community and people who can keep secrets know how intelligence is gathered" and according to Woolsey, those responsible for leaks "have done a great disservice to this country and its defenses".

However, while some regard the TSP as an essential component of the War on Terror, others are more critical.


Timothy Lynch, director of the Project on Criminal Justice at the Cato Institute, a libertarian Washington think tank, was skeptical of the notion that leaks have undermined the fight against terrorism. "Terrorists already know that the government has wire-tapping capabilities," he said.

Lynch also raised questions over the legality of the program, and declared it "inconsistent with our law". Lynch said, "The burden of the administration is to demonstrate failings in the existing law to Congress, not to revise it in secret".

He argued the use of wartime presidential powers to justify the establishment of the TSP encourages concern that the program may be secretly extended to monitor domestic communications. "This is why not just Democrats but Republicans are expressing skepticism about the legality of the program", he said.

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