[Clips] The Wisdom in Wiretaps

Sat Jan 7 14:50:58 PST 2006

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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 <mailto: rah at 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'
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-----------------
R. A. Hettinga <mailto: rah at 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'