[Clips] Thank You for Wiretapping

Tue Dec 20 08:36:29 PST 2005

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 Date: Tue, 20 Dec 2005 11:16:31 -0500
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 From: "R. A. Hettinga" <rah at shipwright.com>
 Subject: [Clips] Thank You for Wiretapping
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 <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 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'