Spies like us
Kathleen Parker
COMMENTARY
December 31, 2005
I've been trying for several days now to get upset about the National Security Agency's eavesdropping program. No, wait, make that President George W. Bush's illegal, warrantless, domestic spying scandal.
That sounds more darkly nefarious, more richly conspiratorial and, most important, more impeachable. But is it true? Is Bush spying illegally on Americans? As usual, it depends on whose head is talking and how one spins the yarn.
"The president has authorized a domestic spying program without court approval" sounds like Big Brother is breathing down all our necks. "The president has authorized national security agents to wiretap suspected terrorists" sounds like common sense.
Thus, try as I might, I can't muster outrage over what appears to be a reasonable action in the wake of 9-11. As a rule, I'm as averse as anyone to having people "spying" on me. I'm also as devoted to protecting civil liberties as any other American.
But the privilege of debating our constitutional rights requires first that we be alive. If federal agents want to listen in on suspected terrorists as they plot their next mass murder, please allow me to turn up the volume.
Meanwhile, unless I start placing calls to Peshawar using phrases such as "I want my 72 virgins now," then I figure I'm safe to make my next hair appointment without fear of exposure. OK, fine, so I highlight.
I'm not making light of legitimate concerns about government power over private lives -- vigilance is critical and debate worthwhile, but this seems like a manufactured controversy. It also reminds us yet again that America's decency may be her greatest weakness.
It is our nature to project onto others the principles, values and qualities we hold dear. But it is our enemies' nature -- and their strategy -- to take advantage of those same principles. If not for our open-heartedness toward diversity and our generous spirit in welcoming all comers to these shores, Sept. 11, 2001, might never have happened.
Instead, 19 terrorists traveled freely and lived among us undetected because we were too fat, dumb and happy to imagine that anyone would want to kill us. We were innocent then, but no more. Now we look for dots and try to connect them. We use sophisticated technology to track calls, collate data, and match suspicious-sounding words with names and numbers to create a mosaic of potentially murderous intent.
Sometimes we might get it right and prevent another attack; sometimes we might mistakenly eavesdrop on an innocent conversation. What we save -- possibly thousands of lives -- compared with what we lose (mostly the exposure of our embarrassingly dull lives) would seem sufficiently self-evident to preclude the meme-driven hysteria now clotting airwaves: Bush lied; Bush spied. And, oh, yes, people died.
Or maybe not. Maybe people didn't die because federal agents acted in the moment and wiretapped someone they thought might be a threat to U.S. security. Maybe thousands didn't get blown up on the Brooklyn Bridge as Iyman Faris had plotted because agents wiretapped Faris' phone.
Now we learn that Faris, who pleaded guilty in October 2003 to working with al-Qaeda, is prepared to sue Bush for illegally wiretapping him. The crux of his case would be that Bush's NSA policy violated the 1978 Foreign Intelligence Surveillance Act, which requires a warrant from a special court before an American citizen can be wiretapped.
That, at least, is his attorney's position. Other legal authorities assert that Bush is well within his constitutional authority to pursue foreign intelligence and to monitor communications without a warrant. For more on this, read "Unwarranted Complaints" in the Dec. 27 New York Times (ny times.com/2005/12/27/opinion/27case y.html?pagewanted=print) by David B. Rivkin and Lee A. Casey, both lawyers who served in the Justice Department in the Reagan and George H.W. Bush administrations.
However the fine legal points are resolved, the current tenor of debate seems out of tune with events. In theory, I don't want to be wiretapped without due process, no matter how unlikely it is that anyone would want to know the shade of my highlights.
But in practice, the task of getting scores or hundreds of warrants to wiretap terrorism suspects mid-conversation seems impossible to imprudent.
More to the point, I want the government to connect all the little dots it can in order to prevent another slaughter on American soil. How rich that Bush should be treated as a criminal for trying to prevent another 9-11 attack, while a known al-Qaeda terrorist could be set free on a technicality.
Our decency may kill us yet.
Kathleen Parker can be reached at [email protected] or 407-420-5202. Her column usually appears on the editorial pages on Sunday.
Even if illegal wiretapping is traditional among American presidents, that does not make it legal. And "legal opinion" is an ambiguous term. A few pages ago, I believe it was you who said the Supreme Court left the question open. Debra refuted that assertion with some pretty clear Supreme Court quotes. But even assuming you were correct, it is still a long shot from being "on his side".
FISA vs. the Constitution
Congress can't usurp the president's power to spy on America's enemies.
BY ROBERT F. TURNER
Wednesday, December 28, 2005 12:01 a.m.
In the continuing saga of the surveillance "scandal," with some congressional Democrats denouncing President Bush as a lawbreaker and even suggesting that impeachment hearings may be in order, it is important to step back and put things in historical context. First of all, the Founding Fathers knew from experience that Congress could not keep secrets. In 1776, Benjamin Franklin and his four colleagues on the Committee of Secret Correspondence unanimously concluded that they could not tell the Continental Congress about covert assistance being provided by France to the American Revolution, because "we find by fatal experience that Congress consists of too many members to keep secrets."
When the Constitution was being ratified, John Jay--America's most experienced diplomat and George Washington's first choice to be secretary of state--wrote in Federalist No. 64 that there would be cases in which "the most useful intelligence" may be obtained if foreign sources could be "relieved from apprehensions of discovery," and noted there were many "who would rely on the secrecy of the president, but who would not confide in that of the Senate." He then praised the new Constitution for so distributing foreign-affairs powers that the president would be able "to manage the business of intelligence in such manner as prudence may suggest."
In 1790, when the first session of the First Congress appropriated money for foreign intercourse, the statute expressly required that the president "account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify." They made no demand that President Washington share intelligence secrets with them. And in 1818, when a dispute arose over a reported diplomatic mission to South America, the legendary Henry Clay told his House colleagues that if the mission had been provided for from the president's contingent fund, it would not be "a proper subject for inquiry" by Congress.
For nearly 200 years it was understood by all three branches that intelligence collection--especially in wartime--was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of "executive power" to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947.
Space does not permit a discussion here of the congressional lawbreaking that took place in the wake of the Vietnam War. It is enough to observe that the Constitution is the highest law of the land, and when Congress attempts to usurp powers granted to the president, its members betray their oath of office. In certain cases, such as the War Powers Resolution and the Foreign Intelligence Surveillance Act, it might well have crossed that line.
Keep in mind that while the Carter administration asked Congress to enact the FISA statute in 1978, Attorney General Griffin Bell emphasized that the law "does not take away the power of the president under the Constitution." And in 1994, when the Clinton administration invited Congress to expand FISA to cover physical as well as electronic searches, the associate attorney general testified: "Our seeking legislation in no way should suggest that we do not believe we have inherent authority" under the Constitution. "We do," she concluded.
I'm not saying that what the president authorized was unquestionably lawful. The Supreme Court in the 1972 "Keith case" held that a warrant was required for national security wiretaps involving purely domestic targets, but expressly distinguished the case from one involving wiretapping "foreign powers" or their agents in this country. In the 1980 Truong case, the Fourth U.S. Circuit Court of Appeals upheld the warrantless surveillance of a foreign power, its agent or collaborators (including U.S. citizens) when the "primary purpose" of the intercepts was for "foreign intelligence" rather than law enforcement purposes. Every court of appeals that has considered the issue has upheld an inherent presidential power to conduct warrantless foreign intelligence searches; and in 2002 the U.S. Foreign Intelligence Surveillance Court of Review, created by the FISA statute, accepted that "the president does have that authority" and noted "FISA could not encroach on the president's constitutional power."
For constitutional purposes, the joint resolution passed with but a single dissenting vote by Congress on Sept. 14, 2001, was the equivalent of a formal declaration of war. The Supreme Court held in 1800 (Bas v. Tingy), and again in 1801 (Talbot v. Seamen), that Congress could formally authorize war by joint resolution without passing a formal declaration of war; and in the post-U.N. Charter era no state has issued a formal declaration of war. Such declarations, in fact, have become as much an anachronism as the power of Congress to issue letters of marque and reprisal (outlawed by treaty in 1856). Formal declarations were historically only required when a state was initiating an aggressive war, which today is unlawful.
Section 1811 of the FISA statute recognizes that during a period of authorized war the president must have some authority to engage in electronic surveillance "without a court order." The question is whether Congress had the power to limit such authorizations to a 15-day period, which I think highly doubtful. It would be akin to Congress telling the president during wartime that he could attack a particular enemy stronghold for a maximum of 15 days.
America is at war with a dangerous enemy. Since 9/11, the president, our intelligence services and our military forces have done a truly extraordinary job--taking the war to our enemies and keeping them from conducting a single attack within this country (so far). But we are still very much at risk, and those who seek partisan political advantage by portraying efforts to monitor communications between suspected foreign terrorists and (often unknown) Americans as being akin to Nixon's "enemies lists" are serving neither their party nor their country. The leakers of this sensitive national security activity and their Capitol Hill supporters seem determined to guarantee al Qaeda a secure communications channel into this country so long as they remember to include one sympathetic permanent resident alien not previously identified by NSA or the FBI as a foreign agent on their distribution list.
Ultimately, as the courts have noted, the test is whether the legitimate government interest involved--in this instance, discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives--outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists. And just as those of us who fly on airplanes have accepted intrusive government searches of our luggage and person without the slightest showing of probable cause, those of us who communicate (knowingly or otherwise) with foreign terrorists will have to accept the fact that Uncle Sam may be listening.
Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.
Mr. Turner, co-founder of the Center for National Security Law at the University of Virginia School of Law, served as counsel to the President's Intelligence Oversight Board, 1982-84.
Happy New Year, Thomas.
From the last paragraph:
Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.
Not true: The president performed wiretaps on US citizens without court approval. We are not talking about "collect foreign intelligence." What Bush did impinges on our privacy rights as guaranteed by the Constitution. No president has the authority to impinge on our rights without the approval from congress. That is why FISA is the law of the land. Yes, he has the right to "continue monitoring the communications of our nation's declared enemies." It says nothing about unauthorized wiretaps of US citizens.
cicerone imposter wrote:From the last paragraph:
Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.
Not true: The president performed wiretaps on US citizens without court approval. We are not talking about "collect foreign intelligence." What Bush did impinges on our privacy rights as guaranteed by the Constitution. No president has the authority to impinge on our rights without the approval from congress. That is why FISA is the law of the land. Yes, he has the right to "continue monitoring the communications of our nation's declared enemies." It says nothing about unauthorized wiretaps of US citizens.
Just a question:
When a known foreign enemy communicates from a foreign land with anyone in America, does that communication constitute foreign or domestic intelligence.
But then there's the fact that every president in recent memory has done the same thing, and the fact that he has several relatively recent legal opinions on his side.
Finn d'Abuzz wrote:If Naftali is correct, then the Administration has been, essentially, going on a fishing expedition with this surveillance . . . in the hope that the mass of aggregate information will reveal patterns that can pinpoint actual Sleepers.
Would this change anyone's previously held position on the issue?
No.
Actually I should have been more specific with this question. I had no expectations that it might alter your position or the positions of like-minded posters (on the contrary, my expectation was that it would reinforce it). The question was really directed towards those who believe the President to be justified.
But thanks for responding.
Finn d'Abuzz wrote:Now imagine that you are the President of the United States in a post-9/11 America. If the NSA came to you and convinced you that it had the means of identifying likely terrorist Sleepers in our country which would lead us to being able to foil terrorist plans, but it would be necessary to conduct wiretaps and e-mail intercepts of people without any known terrorist affiliations, what would you do?
The MEANS: Ignore and violate the Constitution that restrains government power and ignore and violate a congressional enactment that restrains government power.
Since I am the now imagining that I am the President, my response is as follows: "I am not above the law. I am sworn to uphold the Constitution and laws of this nation. I cannot, in good faith, justify ordering the widespread violation of the Constitution and the laws of this nation."
So disallowing for all the wind, you are saying you would not have taken advantage of the NSA program.
Presumably, therefore, should another 9/11 style attack or worse occur you would not second-guess your decision.
Just so I understand your position: Is it that all laws are inviolate, or only the ones you think should be? That may sound snider that is intended, but it is a sincere inquiry.
Quote:I think we should all be able to agree that the first step would be to obtain a legal opinion from the Attorney General.
Absolutely. If it was my intention to violate the law, my first step would be to contact the person in charge of "justifications and cover my ass" department. Here it goes:
Quote:Dear Attorney General:
I intend to conduct mass suspicionless and warrantless dragnet searches and seizures of the electronic communications of the American people in the hope that I can identify potential terrorists. At least, that's my ostensible purpose and if I detect other private conversations that incidently help me in other ways, oh well. (wink, wink) Both the Constitution and FISA stand in my way. Therefore, I request a secret written legal opinion from the Department of Justifications that states the President is "above the law." In other words, I request a secret written legal opinion that states the President has "inherent constitutional authority" to do what I intend to do notwithstanding the Fourth Amendment and FISA. (Things would be a lot easier if this was a dictatorship and I was the dictator, LOL).
I will then stash that secret written opinion away in a secret place. In the meantime, while I am conducting mass suspicionless warrantless searches, I will openly lie to the American people and tell them that nothing has changed. I will make speeches throughout the nation. I will proclaim that wiretaps still require a court order because we respect the Constitution and the laws of this country. Those lies will generate the false confidence that the American people may have that I am a president who honors his oath. After all, I have to get re-elected and the false confidence of the electorate is necessary to achieve that goal.
If my secret domestic spy program is shamefully leaked by some whistleblower and the media exposes my program to the public, I will then whip out your secret written opinion to justify my actions and as a means to cover my ass.
Respectfully, your freedom-loving (ha, ha) President,
George W. Bush
These are the sort of comments that consistently undercut your arguments, and tend to frame them as the product of either an ideological zealot or a partisan hack.
Unless you have evidence that no one else has, you have made an unfounded allegation that the president's decision to deploy the NSA program was part of a plan to establish a dictatorship.
Of course you are entitled to believe this is the case, but it would be less intellectually dishonest of you if you didn't attempt to wrap these wild claims within a cocoon of case law and legal principles.
Quote:If the Attorney General came back to us and reported: "Well a reasonable argument can be made that you do not have the authority to proceed with this program and a reasonable argument can be made that you do, and ultimately, it will fall to the Supreme Court to decide." How would you proceed?
Again, I'm imagining that I am the President. I KNOW that intentionally conducting electronic surveillance on United States persons without obtaining FISA court approval either before or within 72 hours after the surveillance is a federal crime.
Well yes, we know you are the authority on legal issues and would never even require advice from counsel, but the scenario and question were more generalized.
1) I can petition the court for a declaratory judgment that the AUMF grants me authority to bypass FISA and/or that FISA is unconstitutional as applied to the executive branch's "inherent constitutional power," or
2) I can proceed, and if I am caught, I risk the possibility of both impeachment and criminal charges.
Indeed, although the word caught carries with it the connotation that you knew, without question, that you were violating the law when you took the course. We can argue ad infinitum on this point (let's not though) but I refuse to acknowledge that by proceeding with the use of the NSA program the President was defacto admitting to violating his oath, and the only open question was whether or not he got caught.
However, I will agree that by proceeding with the program he was choosing an option that risked the possibility of impeachment and criminal charges.
I don't have a problem with this providing:
1) He had reason to believe that he was legally operating within his authority
2) That he had reason to believe the program would save American lives.
3) That he did not use the program to advance his personal or political interests
4) That he was prepared to pay the price if eventually it was adjudicated that he did indeed violate his oath
Neither you nor I know whether or not any of these conditions were met.
It is not surprising that someone who calls herself Debra_Law on an internet discussion forum would have such an absolute regard for the law that she believes that our leaders should opt for inaction if action requires bending, or even interpretation of a law.
I have never seen a lawyers' list of the greatest presidents in American history, but I have seen those of a number of historians. Interestingly enough a number of the presidents who consistently appear in the upper tiers of the historians' lists took action rather than filing declaratory actions.
Quote:So here's the scenario:
There is a program that offers a good chance to prevent terrorist attacks within America. Arguably you do not have the authority to authorize it, but then again, arguably you do. If the program comes to light (as it almost inevitably will) you will take a political punch in the gut. If there is another terrorist attack, you will take a political punch to the gut.
What do you do?
SECRET PROGRAM = SECRET POLICE STATE.
How so? Are you really arguing that our government, if it is to be considered democratic, cannot engage in clandestine operations?
SECRET PROGRAM = lying to the America people and creating an illusion that their President values the fundamental principles that we hold dear as a nation because I erroneously believe the appearance of freedom means more to the American people (or should I say, sheeple) than the reality.
Again, little more than the rant of a ideological zealot or a partisan hack. The use of "sheeple" is a dead give-a-way.
Quote:I have no problem with someone arguing that in the same circumstance that they would not order the program to go forward. To do so is neither negligent or the cowards way out.
What I have an enormous problem with is someone arguing that if under these circumstances someone decides to go forward with the program, they are a tyrant and attempting to establish a dictatorship.
That you have an "enormous problem" with holding this tyrant accountable for his unconstitutional and unlawful conduct only demonstrates that you are willing to sacrifice our sacred liberties that were consecrated on the battlefields of the Revolution on the altar of a false savior.
What spurious drivel.
I have no problem with holding Bush accountable for unconstitutional and unlawful conduct. I'm sorry, but I am not about to concede that this has been the case because George W. Bush has been tried and found guilty in the Supreme Court of Ms. Debra_Law.
Quote:If it could be shown that the President ordered the program to go forward so that his political enemies could be punished, his personal coffers enriched, or his personal power enlarged, I would jump on the impeachment bandwagon. Until then I think it is partisan hysteria.
You have placed a HALO on top of the president's head because he is arguably protecting us from danger and chalk up criticism of his unconstitutional and unlawful conduct as "partisan hysteria."
You are being redundant with your erroneous charges.
For the purpose of discussion I have attempted to represent the situation in a balanced realistic manner, not excusing his actions nor condemning them. It is an utterly false and vituperative charge that I am chalking up criticism of Bush as "partisan hysteria."
What I am contending is partisan hysteria is the insistence, despite a complete lack of evidence, that his actions were those of a tyrant bent upon establishing a dictatorship.
Perhaps you should change your moniker from Debra_Law to Debra_Judge as that seems to be the aspect of the Law which truly strikes your fancy.
Perhaps you need a history lesson:
I think not, and certainly not from you.
It doesn't matter if you believe that Bush had good intentions and acted for the good of the nation. History teaches us that this is when we should be most on our guard against tyranny and oppression. Your accusation of partisan hysteria is totally without merit.
Bombast, pure and simple.
What I think probably doesn't matter at all to you, but in the general scheme of things it matters as much as what any other A2K poster thinks.
Being on guard against tyranny and oppression doesn't require unfounded accusations of same. This is what you and all of your fellow zealots fail to realize. You're not content with being sentinels, you want to be warriors.
If it is someday proven that Bush was intending to stage a coup and create a dictatorship, your accusations of today will appear to have been correct, however throw enough sh*t on the wall and some of it is bound to stick. The problem is that all the while you are living in a house filled with sh*t.
Ticomaya wrote:But then there's the fact that every president in recent memory has done the same thing, and the fact that he has several relatively recent legal opinions on his side.
Every president in recent memory has done this exact same thing? Are you sure, because my gotcha finger is very itchy. And are you absolutely certain that there are several relatively recent legal opinions on his side? Or are you really just referring to that one FISA appeals court opinion that keeps getting regurgitated in every right wing editorial?
Quote:Unwarranted Complaints
By DAVID B. RIVKIN and LEE A. CASEY[/url]
. . . The president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing. . . .
David B. Rivkin and Lee A. Casey are lawyers who served in the Justice Department in the Reagan and George H. W. Bush administrations.
Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.
. . . So with court order, law enforcement officials can now use what's called roving wiretaps, which will prevent a terrorist from switching cell phones in order to get a message out to one of his buddies.
Thomas wrote:Even if illegal wiretapping is traditional among American presidents, that does not make it legal. And "legal opinion" is an ambiguous term. A few pages ago, I believe it was you who said the Supreme Court left the question open. Debra refuted that assertion with some pretty clear Supreme Court quotes. But even assuming you were correct, it is still a long shot from being "on his side".
Happy New Year, Thomas.
"Legal opinion" meaning opinions of federal courts. The Supreme Court has acknowledged the issue, but not addressed it. Debra's quotes are distinguishable. And the opinions I'm talking about absolutely are "on his side," inasmuch as they specifically state the President has the power to conduct warrantless searches for foreign intelligence purposes. Has Debra supplied ANY court opinions that say the President does not have that power? No. What she has done is constructed an argument of how she thinks the Supreme Court will rule when it gets the chance. I have said several times now that if the Supreme Court rules as Debra hopes, it will be overturning the rule of law enunciated in several "legal opinions." Those have been previously cited in this thread.
Quote:Spies like us
Kathleen Parker
COMMENTARY
December 31, 2005
. . . Meanwhile, unless I start placing calls to Peshawar using phrases such as "I want my 72 virgins now," then I figure I'm safe to make my next hair appointment without fear of exposure. OK, fine, so I highlight. . . .
. . . thanks for responding . . . ideological zealot or a partisan hack. . . intellectually dishonest . . . wrap these wild claims within a cocoon of case law and legal principles . . . little more than the rant of a ideological zealot or a partisan hack . . . spurious drivel . . . redundant . . . erroneous charges . . . utterly false and vituperative charge . . . Bombast, pure and simple . . . you and all of your fellow zealots . . . you are living in a house filled with sh*t.
