Delivered-To: clips@philodox.com Date: Sat, 7 Jan 2006 17:47:28 -0500 To: Philodox Clips List From: "R. A. Hettinga" Subject: [Clips] The Wisdom in Wiretaps Reply-To: rah@philodox.com Sender: clips-bounces@philodox.com 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' _______________________________________________ Clips mailing list Clips@philodox.com http://www.philodox.com/mailman/listinfo/clips -- ----------------- 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'