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Date: Sat, 7 Jan 2006 17:47:28 -0500
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From: "R. A. Hettinga"
Subject: [Clips] The Wisdom in Wiretaps
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http://online.wsj.com/article_print/SB113659640180740425.html
The Wall Street Journal
January 7, 2006
REVIEW & OUTLOOK
The Wisdom in Wiretaps
January 7, 2006; Page A6
The Bush Administration's use of warrantless wiretaps in the war on
terrorism continues to generate controversy, and Congress is planning
hearings. Some of the loopier elements of the Democratic Party have even
suggested the wiretaps are grounds for impeachment. But the more we learn
about the practice, the clearer it is that the White House has been right
to employ and defend it.
The issue is not about circumventing normal civilian Constitutional
protections, after all. The debate concerns surveillance for military
purposes during wartime. No one would suggest the President must get a
warrant to listen to terrorist communications on the battlefield in Iraq or
Afghanistan. But what the critics are really insisting on here is that the
President get a warrant the minute a terrorist communicates with an
associate who may be inside in the U.S. That's a loophole only a terrorist
could love.
To the extent the President's critics are motivated by anything other than
partisanship, their confusion seems to involve a 1978 law called the
Foreign Intelligence Surveillance Act. FISA provides a mechanism by which
the executive can conduct warrant-approved surveillance under certain
circumstances. But FISA covers only a limited number of
intelligence-gathering scenarios. And no Administration -- Democrat or
Republican -- has recognized FISA as a binding limit on executive power.
Jimmy Carter's Attorney General, Griffin Bell, emphasized when FISA passed
that the law "does not take away the power of the President under the
Constitution." And in the 1980 case of United States v. Truong, the Carter
Administration successfully argued its authority to have conducted entirely
domestic, warrantless wiretaps of a U.S. citizen and a Vietnamese citizen
who had been passing intelligence to the North Vietnamese during the 1970s
Paris peace talks.
In 1994, Deputy Attorney General Jamie Gorelick also asserted an "inherent
authority" not just to warrantless electronic surveillance but to
"warrantless physical searches," too. The close associate of Hillary Rodham
Clinton told Congress that much intelligence gathering couldn't be
conducted within the limits placed on normal criminal investigations --
even if you wanted to for the sake of appearances. For example, she added,
"it is usually impossible to describe the object of the search in advance
with sufficient detail to satisfy the requirements of the criminal law."
Some critics have argued that the surveillance now at issue could have been
conducted within the confines of FISA. But that doesn't appear to be true.
FISA warrants are similar to criminal warrants in that they require a
showing of "probable cause" -- cause, that is, to believe the subject is an
"agent of a foreign power." But if the desired object of surveillance is a
phone number found on 9/11 mastermind Khalid Sheikh Mohammed's computer,
you may not even know the identity of its owner and you can't show probable
cause.
Nor does the actual track record of FISA argue for the sacredness of
judicial oversight of intelligence gathering. In the 1990s, FISA judges
nitpicked warrant requests to the extent that Ms. Gorelick and others
believed FISA required a complete "wall" of separation between foreign
intelligence gathering and U.S. criminal investigators. One consequence was
the FBI's failure to request a warrant to search alleged "20th hijacker"
Zacarias Moussaoui's computer. Only after 9/11 did FISA's appeals panel
rule that such a wall had never been necessary, and did the Patriot Act
destroy it once and for all.
Other critics accept the President's inherent power but say he still should
have asked Congress to approve the wiretaps. But some in Congress were
informed of the wiretaps and did nothing to stop them. Instead, the ranking
Democrat on Senate Intelligence, Jay Rockefeller, wrote a private letter to
Vice President Dick Cheney expressing his "lingering concerns" and saying
he'd keep it on file for posterity -- or more precisely, for
posterior-covering. The Senator then released the letter after the story
became public as a way to play "gotcha."
If Mr. Rockefeller had been serious about his objections in 2003, he should
have told Mr. Cheney to cease and desist or that he'd try to pass
legislation to stop it. After reading Mr. Rockefeller's letter of
self-absolution, we can understand if Mr. Cheney concluded that the
wiretapping was too important to the war on terror to risk seeking an
explicit legislative endorsement from so feckless a Congress. The way the
Members have played politics with the Patriot Act is another reason not to
give Congress a chance to micromanage war-fighting decisions.
As for the judiciary, one question that Congressional hearings should
explore is whether FISA itself is unconstitutional. That is, whether it
already grants the courts too much power over the executive branch's
conduct of foreign policy by illegitimately imposing the "probable cause"
standard.
Laurence Silberman, a former deputy attorney general, testified on this
point while Congress was debating FISA. He also pointed out that while fear
of exposure is a strong disincentive to executive abuse of surveillance
power, "since judges are not politically responsible, there is no
self-correcting mechanism to remedy their abuses of power" in such matters.
In other words, FISA grants the judiciary a policy supremacy that the
Constitution doesn't.
The upside of the coming Congressional hearings, we guess, is that
Americans will get a lesson in the Constitution's separation of powers.
We're confident they'll come away believing the Founders were right to the
give the President broad war-fighting -- including surveillance -- powers.
--
-----------------
R. A. Hettinga
The Internet Bearer Underwriting Corporation http://www.ibuc.com/
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'
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--
-----------------
R. A. Hettinga
The Internet Bearer Underwriting Corporation http://www.ibuc.com/
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'