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To Spy or Not To Spy?

Wednesday, December 21, 2005, 20:44 EDT Leave a comment Go to comments

Democratic and media hyperventilating notwithstanding, it turns out that President Bush’s practice of tapping into e-mails and phone calls involving terrorism suspects without first obtaining a warrant is legal after all, if analysis by a former assistant Attorney General in the Clinton Administration is to be believed.

In the Supreme Court’s 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president’s authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the … courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence … We take for granted that the president does have that authority."

At issue is the specific use of wiretapping and e-mail surveillance of communications between a party in the United States and a party in a foreign country where the intent is to gather intelligence related to national security threats. We aren’t talking about indiscriminate spying, despite what recent headlines suggest. Even so, Americans instinctively believe such activity to be prohibited without a warrant issued by a court with appropriate jurisdiction. That’s what prevents your local, state, or federal government from monitoring your e-mails or listening in on your phone calls for no reason. There may be a good reason to do so, but a judge has to be convinced before allowing it. No warrant, no wiretap.

But there’s a wrinkle known as the Foreign Intelligence Service Act (FISA) which established procedures for foreign intelligence gathering as opposed to regular law enforcement of, say, your local mafia boss or drug dealer. FISA allowed for the creation of a secret court through which warrants can be obtained in a manner more secure than going through the regular judiciary, thereby ensuring greater secrecy than is available via our openly operating courts.

What Bush has done is authorize electronic surveillance for foreign intelligence gathering, but without warrants from the FISA-created secret court, apparently using the same justifications used by his predecessors.

Despite available information that Bush may be correct in claiming the legal right to do what he did, it’s unlikely that the court jesters who pass for today’s Democratic party leadership will end up with egg on their face on this issue. Why would they, unless journalists call them on it? Most journalists can’t grasp the intricacies of complex laws involving safeguarding of national security and therefore can’t accurately report them. Democrats will use the lack of accurate coverage as an excuse to call (again) for Bush’s impeachment, knowing that most of their constituents presume what they see reported is true. But even if their current approach wins them points in their holy war against Bush, it’s a huge mistake for them to take that road if their interest is in justice. What they should be focusing on is not whether what Bush has been doing is legal (it is) but rather whether it should be legal.

Legal, of course, doesn’t necessarily equal right, and it’s appropriate to enact laws that reflect shifts in the people’s understanding of what is and is not acceptable behavior by their elected officials. The Supreme Court recently ruled that it’s legal for municipalities to use eminent domain to give one person’s private property to another private party for private use, but I’m not aware of anyone except real estate developers who thinks that’s a good thing or who wouldn’t want to see the use of eminent domain tightened up via either statute or constitutional amendment. Abortion on demand and state-sponsored execution are legal, but that hasn’t stopped many people (myself included) from expending considerable energy trying to abolish them, as our forebears did a century and a half ago when the hot-button issue was slavery. The list of injustices that were once legal but are no longer is a long one. There is nothing wrong with society’s occasionally recognizing that we haven’t always done the right thing and rectifying it.

Now I’m not an expert on such things, but I am somewhat familiar from news coverage since the September 11 terrorist attacks that the use of the FISA secret court is on the increase—and that it has always been essentially a rubber stamp. According to the Electronic Privacy Information Center, the court established by FISA has approved 18,742 warrant applications since 1979 and denied only four (hat tip to Joshua Micah Marshall). That’s a ratio of 4,685.5 approvals for every denial, for those keeping score at home. If there is a reason why that track record should be considered insufficient to allow the federal government the leeway its agents say they need, let it be argued on the floor of the United States Congress. If no such reason exists, a law should be enacted explicitly removing from presidents henceforth the authority to act outside the bounds of the secret court.

Unfortunately, the same people who are now most boisterously calling for Bush’s head on a platter are also the least likely to actually do something constructive and pursue a change in the law. Why? For starters, they aren’t nearly as concerned about whether Bush broke the law as they are consumed with hatred for the guy. Just as Sen. Robert Byrd (D-WV) argued during President Clinton’s Senate trial that he would vote to acquit even though he believed Clinton was guilty, there are those now who would vote to convict Bush even if they believed him to be innocent of whatever charges were brought against them. It’s called blind partisanship, and increasingly it’s what people in Washington do. But more importantly, they won’t push for a change in the law because they want to keep the option open for future presidents of their preferred political stripe. For evidence of that fact, note that none of them batted an eyelash when President Clinton and President Carter asserted the same power which Bush stands accused of exercising (hat tip to Matt Drudge).

Those who are truly interested in civil liberties and maintaining Americans’ constitutional rights would do well to distance themselves from the Democratic feeding frenzy and instead focus on the root issue of how much power the president—any president—should have. Eviscerating Bush, while no doubt immensely satisfying to Washington’s carnivores, is a waste of time.

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Categories: government
  1. Thursday, December 22, 2005, 00:16 EDT at 00:16

    His analysis is not to be believed. His quote “the court said explicitly that it was not questioning the president’s authority to take such action in response to threats from abroad,” suggests that the Court recognized that power and chose not to question it. What is actually true is that Keith did not even touch on that issue, and explicitly so.http://www.justia.us/us/407/297/case.htmlSee the second section.

  2. Thursday, December 22, 2005, 16:37 EDT at 16:37

    PD, you are inferring something from the quote that I don’t see. Schmidt isn’t citing Keith as evidence that warrantless searches are legal; he is stating that it cannot be taken as evidence they are illegal. The “analysis” to which I refer is what comes after the reference to Keith.

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