[Clips] Thank You for Wiretapping
--- begin forwarded text Delivered-To: clips@philodox.com Date: Tue, 20 Dec 2005 11:16:31 -0500 To: Philodox Clips List <clips@philodox.com> From: "R. A. Hettinga" <rah@shipwright.com> Subject: [Clips] Thank You for Wiretapping Reply-To: rah@philodox.com Sender: clips-bounces@philodox.com <http://online.wsj.com/article_print/SB113503784784326861.html> The Wall Street Journal December 20, 2005 REVIEW & OUTLOOK Thank You for Wiretapping December 20, 2005; Page A14 Wisconsin Democrat Russ Feingold wants to be President, and that's fair enough. By all means go for it in 2008. The same applies to Lindsey Graham, the South Carolina Republican who's always on the Sunday shows fretting about the latest criticism of the Bush Administration's prosecution of the war on terror. But until you run nationwide and win, Senators, please stop stripping the Presidency of its Constitutional authority to defend America. That is the real issue raised by the Beltway furor over last week's leak of National Security Agency wiretaps on international phone calls involving al Qaeda suspects. The usual assortment of Senators and media potentates is howling that the wiretaps are "illegal," done "in total secret," and threaten to bring us a long, dark night of fascism. "I believe it does violate the law," averred Mr. Feingold on CNN Sunday. The truth is closer to the opposite. What we really have here is a perfect illustration of why America's Founders gave the executive branch the largest measure of Constitutional authority on national security. They recognized that a committee of 535 talking heads couldn't be trusted with such grave responsibility. There is no evidence that these wiretaps violate the law. But there is lots of evidence that the Senators are "illegally" usurping Presidential power -- and endangering the country in the process. * * * The allegation of Presidential law-breaking rests solely on the fact that Mr. Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. But no Administration then or since has ever conceded that that Act trumped a President's power to make exceptions to FISA if national security required it. FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed. The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that, "We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power." On Sunday Mr. Graham opined that "I don't know of any legal basis to go around" FISA -- which suggests that next time he should do his homework before he implies on national TV that a President is acting like a dictator. (Mr. Graham made his admission of ignorance on CBS's "Face the Nation," where he was representing the Republican point of view. Democrat Joe Biden was certain that laws had been broken, while the two journalists asking questions clearly had no idea what they were talking about. So much for enlightening television.) The mere Constitution aside, the evidence is also abundant that the Administration was scrupulous in limiting the FISA exceptions. They applied only to calls involving al Qaeda suspects or those with terrorist ties. Far from being "secret," key Members of Congress were informed about them at least 12 times, President Bush said yesterday. The two district court judges who have presided over the FISA court since 9/11 also knew about them. Inside the executive branch, the process allowing the wiretaps was routinely reviewed by Justice Department lawyers, by the Attorney General personally, and with the President himself reauthorizing the process every 45 days. In short, the implication that this is some LBJ-J. Edgar Hoover operation designed to skirt the law to spy on domestic political enemies is nothing less than a political smear. All the more so because there are sound and essential security reasons for allowing such wiretaps. The FISA process was designed for wiretaps on suspected foreign agents operating in this country during the Cold War. In that context, we had the luxury of time to go to the FISA court for a warrant to spy on, say, the economic counselor at the Soviet embassy. In the war on terror, the communications between terrorists in Frankfurt and agents in Florida are harder to track, and when we gather a lead the response often has to be immediate. As we learned on 9/11, acting with dispatch can be a matter of life and death. The information gathered in these wiretaps is not for criminal prosecution but solely to detect and deter future attacks. This is precisely the kind of contingency for which Presidential power and responsibility is designed. What the critics in Congress seem to be proposing -- to the extent they've even thought much about it -- is the establishment of a new intelligence "wall" that would allow the NSA only to tap phones overseas while the FBI would tap them here. Terrorists aren't about to honor such a distinction. As Secretary of State Condoleezza Rice said Sunday on NBC's "Meet the Press," before 9/11 "Our intelligence agencies looked out; our law enforcement agencies looked in. And people could -- terrorists could -- exploit the seam between them." The wiretaps are designed to close the seam. * * * As for power without responsibility, nobody beats Congress. Mr. Bush has publicly acknowledged and defended his decisions. But the Members of Congress who were informed about this all along are now either silent or claim they didn't get the full story. This is why these columns have long opposed requiring the disclosure of classified operations to the Congressional Intelligence Committees. Congress wants to be aware of everything the executive branch does, but without being accountable for anything at all. If Democrats want to continue this game of intelligence and wiretap "gotcha," the White House should release the names of every Congressman who received such a briefing. Which brings us to this national security leak, which Mr. Bush yesterday called "a shameful act." We won't second guess the New York Times decision to publish. But everyone should note the irony that both the Times and Washington Post claimed to be outraged by, and demanded a special counsel to investigate, the leak of Valerie Plame's identity, which did zero national security damage. By contrast, the Times's NSA leak last week, and an earlier leak in the Washington Post on "secret" prisons for al Qaeda detainees in Europe, are likely to do genuine harm by alerting terrorists to our defenses. If more reporters from these newspapers now face the choice of revealing their sources or ending up in jail, those two papers will share the Plame blame. The NSA wiretap uproar is one of those episodes, alas far too common, that makes us wonder if Washington is still a serious place. Too many in the media and on Capitol Hill have forgotten that terrorism in the age of WMD poses an existential threat to our free society. We're glad Mr. Bush and his team are forcefully defending their entirely legal and necessary authority to wiretap enemies seeking to kill innocent Americans. -- ----------------- R. A. Hettinga <mailto: rah@ibuc.com> 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 --- end forwarded text -- ----------------- R. A. Hettinga <mailto: rah@ibuc.com> 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'
From: "R. A. Hettinga" <rah@shipwright.com> [...] The Wall Street Journal
December 20, 2005 REVIEW & OUTLOOK
Thank You for Wiretapping December 20, 2005; Page A14 [...] There is no evidence that these wiretaps violate the law.[...]
Well, no evidence if you can't read. If you can read, I suggest looking here: http://www.law.cornell.edu/uscode/html/uscode50/usc_sup_01_50_10_36_20_I.htm... That is the text of the law. It was passed in 1978 after the congress got upset about the NSA spying without court orders, so the intent is unmistakable. The law says "you can listen in on US citizens all you like, but you have to request permission of a special court, the FISC. You can start listening in on their communications up to 72 hours before asking the FISC so you can't make a claim that there was no time to ask, but you must ultimately ask the FISC. If you do not ask the FISC, what you do is a felony punishable by five years in prison and a $10,000 fine, and the people you listened in on get to sue you for civil damages, too." You can read the law yourself. Yo do not need to believe me on it. I suggest strongly that people take the five minutes needed to read this section of the law in its entirety. It is short and simple. There is no complicated legal language in it. It is also utterly impossible to misinterpret. Once you have read it for yourself, no spin doctor like Bob or the Wall Street Journal can tell you what to think. No one can pretend to you that the truth is not the truth. You will know for yourself, without the need for the media to interpret things for you. So, I suggest you arm yourself against people who choose to tell you things that aren't true by reading for yourself. Again, it will take you less than five minutes. There are also lots of people out there who will claim to you that the President can ignore the law. That's not true -- we have multiple Supreme Court precedents that say otherwise. Still others will tell you that the President's military authority lets him ignore the law in certain ways, and again, we have Supreme Court precedents that cover that. So, why are some people pretending that black is white and white is black? Because for once, George W. Bush has actually slipped up and committed a federal crime. That means that everyone involved is dancing as hard as they can, trying to kick up enough dust that people forget about lines in the law like: An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both. They're gambling that you won't read the law for yourself, that you won't know what it says, that you'll believe them when they say that the truth is not the truth. They're betting on the ignorance and foolishness of the US public, on the laziness of the public. Do not let them win. Read the law for yourself. See for yourself that the President of the United States willfully committed a felony and encouraged others to do so, not to protect anyone, because the law already allowed legal surveillance, even in emergencies, but because the administration arrogantly decided that it was above the law. Read for yourself. Then, call your congressman and your senators and tell them to read for themselves. Do not let this die. Do not let it be forgotten. Perry
The proponents of NSA snooping are getting their drawers twisted, some calling Echelon Clinton's baby, with Drudge and Limbaugh and other wing-nuts linking to a CBS 60 Minutes cursory report, and others of the war lovers disavowing it, while the WSJ cheers for what it does do not understand, ignorantly accusing others of misunderstanding. Duncan Campbell wrote a long report on Echelon for EPIC in June 2000 which the "privacy" org refused to publish, claiming NSA does not spy on Americans. We asked EPIC in January 2005 for permission to publish the report but never got an answer. Here it is, entitled "Signals Intelligence and Human Rights - the ECHELON report:" http://cryptome.org/sigint-hr-dc.htm Campbell carefully reviews all technical, political and legal aspects of Echelon and NSA's global interception programs, and there is meat there for all sides of the current superficial spitting contest -- WSJ and the NYT and WashPo could learn from Campbell. He cites 70s eavesdropping reports from all of them which seem to have been ignored in the shallow recent accounts. Campbell's principal conclusion is that NSA and its backers have lied consistently about what it is doing, from the Church Committee hearings in the 70s on through 2000, and likely have lied since then as a matter of policy, lied to Congress, lied to the public, and perhaps lied to its backers so polished and encrusted is its concealment. Porter Goss, along with Bob Barr, both CIA dudes, tried to pry open NSA's box in the late 90s and had no luck due to the blind faith that NSA could do no wrong, or at least could do no wrong in the eyes of overseers. To be sure, what NSA siphons about US corporate, governmental and political corruption could silence the most frightened of WSJ-adoring malfeasors, a trick learned from Hoover. Don't spy in the US, too much villany in the homeland of winner take all markets. What NSA has on the Times, WashPo and WSJ top dogs would be wondrous to read.
participants (3)
-
John Young -
Perry E. Metzger -
R. A. Hettinga