December 19, 2005

Not Listening Would Be A Scandal.

The story of the NSA operation to conduct wiretaps on international communications in the fight against terrorism continues to reverberate in the blogosphere. I have little to add to the words of the distinguished commentators linked below, except to note the timing of the publication of the story by the New York Times. A story they have been sitting on for a year is released one day after the historic and successful Iraqi elections in a transparent attempt to blunt any positive momentum for the Bush presidency.

Fortunately, Mr. Bush has come out swinging in defense of his policy, and the strategy of the Times and the anti-Bush forces may yet backfire on them.

I liked Ed Morrissey's early reaction to the Times story. Read it all, but here's a sample:

...does the Constitution allow the United States to take the necessary actions to defend itself against asymmetrical warfare without unduly curtailing individual liberties? Does the Constitution require us to sacrifice thousands, perhaps millions, of our citizens to murderers and infiltrators simply because we might not like the idea of international communications being subject to random monitoring?

I would argue that it does not -- and the professional way that the Bush administration handled the NSA program demonstrates that perfectly well. The White House engaged the leadership of both political parties and made partners of the other two branches of government to make this a success. It kept the operation secret as long as possible, it did not use the data to abuse the citizens of the US for any reason; it conducted its operations within the letter of the law, although perhaps outside the spirit that some see it containing. It succeeded at the balancing act required of it, and they deserve great credit in their administration of the project.

Michelle Malkin has a first-rate roundup, as usual.

Mark Levin comments at The Corner

Byron York at NRO explains why the President authorized the wiretaps. And we must hear from George Will.

In depth legal analysis of the President's action from Orin Kerr at Volokh Conspiracy.

And Hugh Hewitt is all over the story, with his customary passion and erudition. Just keep scrolling...and returning to the site.

A New York Sun editorial today I thought said it well...

Reasonable people may differ over the correct place to draw the line between civil liberties and national security in wartime, but this strikes us as a pretty clear-cut case. The Fourth Amendment states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

At issue is whether the listening in on overseas phone conversations is, in a time of war, "unreasonable." A person is now subject to a warrantless search when boarding an airplane, entering the New York subway system, or even entering the building that houses the office of the New York Civil Liberties Union. Why should an international phone call be inviolate?

As the Sun later noted, it would be a scandal if listening to these conversations was not taking place.

UPDATE 12/20: Excellent op-ed at OpinionJournal today:

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."

...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.

Posted by dan at December 19, 2005 10:46 PM