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Commentary :: Environment
Thank You for Wiretapping
20 Dec 2005
Bless you, George W.
December 20, 2005




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.

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Comments

And a Thank You to You, Wall Street Journal!
20 Dec 2005
My heavens!I nearly spit my champagne when I read this! From joy, you see! Never before in all my years have I seen such a forceful defense of honest-to-goodness, ol' fashioned, 100% American fascism. Thank you, Wall Street Journal, for finally having the courage to speak out against the American people-- those stinky, stinky huddled masses who have kept you and Mr. Bush down for so many years with all their "rights" and "due process." Sure, we never really listened to them anyway but now, finally, we can be rid of the dreadful burden of even having to pretend to listen. Now we can do whatever we wish with impunity and never have to offer up an explanation! Bravo! Let the wiretapping begin!

For years I have tried to warn Congressmen that the Quakers posed an immediate threat to our American way of government, that they were secret assassins whose Pennsylvanian Ninja skills were shabbily hidden by their ostensibly "pacifist" ideology. I tried to warn my Congressman, but he, while being polite, dismissed me as, and I quote, "some rich old kook living in a castle, slowly going crazy."

Aha! Now, who is having the last laugh! Ha ha! Me!!

And for years, whilst attending the IMF meetings around the world, I tried to warn other wealthy Elites that Greenpeace was in fact a sleeper cell for the former Soviet Union and also Al Qaeda and even the devil, Satan, himself, who (reliable sources inform me) lives underneath the ocean floor somewhere near Maryland. Now, thanks to you, Mr. Bush (and to informed elites such as those running the Wall Street Journal) I needn't worry about Greenpeace any longer. Bravo, old boys!

I wait with baited breath for the wonderful, happy day when a United States cruise missile blows up the residence of Mr. Noam Chomsky in Cambridge, Massachusetts. He is ever so persnickety, you see.
In the meantime, wiretap him and all the other commoners, yes, wiretap them and watch their every move, because (just as we elites know, Georgy old boy) they are dangerous. And CRAZY!

Now, if you will excuse me, I have to go hunt some Phillipinos in a Most Dangerous Game. (For them, that is). Ta-ta!