The Wisdom in Wiretaps. Bush critics seek war-powers loopholes to benefit terrorists.

WSJ OpinionJournal ^ | Jan. 7, 2005 | WSJ Editorial

[FairOpinion]

The Bush Administration's use of warrantless wiretaps in the war on terrorism continues to generate controversy, and Congress is planning hearings.

The issue is not about circumventing normal civilian Constitutional protections, after all. The debate concerns surveillance for military purposes during wartime. But what the critics are really insisting on here is that the President get a warrant the minute a terrorist communicates with an associate who may be inside in the U.S. That's a loophole only a terrorist could love.

Jimmy Carter's Attorney General, Griffin Bell, emphasized when FISA passed that the law "does not take away the power of the President under the Constitution." And in the 1980 case of United States v. Truong, the Carter Administration successfully argued the government's authority to have conducted entirely domestic, warrantless wiretaps of a U.S. citizen and a Vietnamese citizen who had been passing intelligence to the North Vietnamese during the 1970s Paris peace talks.

In 1994, Deputy Attorney General Jamie Gorelick also asserted an "inherent authority" not just to warrantless electronic surveillance but to "warrantless physical searches," too. The close associate of Hillary Rodham Clinton told Congress that much intelligence gathering couldn't be conducted within the limits placed on normal criminal investigations--even if you wanted to for the sake of appearances. For example, she added, "it is usually impossible to describe the object of the search in advance with sufficient detail to satisfy the requirements of the criminal law."

As for the judiciary, one question that Congressional hearings should explore is whether FISA itself is unconstitutional. That is, whether it already grants the courts too much power over the executive branch's conduct of foreign policy by illegitimately imposing the "probable cause" standard.

[FairOpinion]

It's an EXCELLENT editorial with a lot of very specific points. I highly recommend going to the link above and reading the entire article. ( No sign in or registration is needed)

[FairOpinion]

And in case anyone missed, I also highly recommend reading Mark Steyn's editorial on the subject (excerpt below, but suggest reading that article in its entirety as well):

Mark Steyn: U.S. shouldn't have to do tap dance over bugging

http://www.freerepublic.com/focus/f-news/1554015/posts


"It's very hard to fight a terrorist war without intelligence. By definition, you can only win battles against terrorists pre-emptively -- that's to say, you find out what they're planning to do next Thursday and you stop it cold on Wednesday. Capturing them on Friday while you're still pulling your dead from the rubble is poor consolation.

...if the Democrats have their way, all terrorist cells in Europe or Pakistan would have to do to put themselves beyond the reach of U.S. intelligence is get a New Jersey-based associate to place a bulk order for Verizon cell phones.

This isn't a hypothetical situation. Consider Iyman Faris, a naturalized American citizen also known as Mohammad Rauf and nailed by U.S. intelligence through the interception of foreign-U.S. communications. ...he was commissioned by al Qaida to return to America and procure the materials for severing suspension-bridge cables and derailing trains.

Do you want Iyman Faris in jail? Or do you think he should have the run of the planet until he's actually destroyed the bridge and killed hundreds of people? Say, the Golden Gate Bridge just as you're driving across after voting for Barbara Boxer and congratulating yourself on your moral superiority.

So that's where we stand four years after Sept. 11. The arthritic $44 billion intelligence bureaucracy is insisting it still needs another five to 10 years to have a clandestine service capable of infiltrating al Qaida operations in the field, but, while we're waiting, don't think of using that $44 billion to keep tabs on their phone calls, because the Dems will impeach you."

[stevem]

This isn't fair. If you don't give the terrorists a fighting chance, it just isn't fair.

If Bush weren't doing his reasonable job in this area, he should be run out of Washington on a rail. Luckily, he takes the security of the American people more seriously than do the Democrats.

[The Worthless Miracle]

It's so weird how the dems can never seem to understand which issues will destroy them. DO theey think that Americans will get alll weepy-eyed over a bunch of muslim terrorists? (I just watched another 9-11 documentary type-show, and I am mad for days after seeing one of those...)

[omega4412]

...mad for days after seeing one of those

Just remember the question the child at a New York school asked the teacher on 9/11, "Why are those birds on fire?" as people jumped to their deaths.

[Cindy]

ARTICLE SNIPPET: "But what the critics are really insisting on here is that the President get a warrant the minute a terrorist communicates with an associate who may be inside in the U.S. That's a loophole only a terrorist could love."

===

ON THE NET...

http://www.truthusa.com/911news.html
http://www.truthusa.com/911news2.html
http://www.truthusa.com/911.html

[sgtbono2002]

****That's a loophole only a terrorist could love****

Obviously a lot of Democraps love it too.

[r-q-tek86]

ping

[WFTR]

My only difference of opinion with the commentary is that guessing about where the Founding Fathers would stand on technological questions that they never faced is a shaky ground for deciding how we should act. They didn't have phone technology of any kind in the 1700's, so we don't know what the Founding Fathers would have thought about wiretapping. We know that they wouldn't hesitate to read the mail of a British agent during the war, but we had a true declared war. I think they might have hesitated to intercept individuals' letters from England without some other probable cause once we were no longer in a declared war. Of course, the problem is that Congress hasn't declared war on Al Qaeda. Maybe the most analogous situation would have been an American receiving correspondence from the Mediterreanean at the time that President Jefferson sent Marines to fight the Barbary Pirates. I don't think President Jefferson would have approved opening that mail. The other side of that argument is that the Barbary Pirates didn't threaten cities in the United States. The situation can be seen many ways, and the different perspectives are why that kind of guessing is problematic.

In the current situation, I think someone's name and number being in Mohammed Atta's "little black book" represents probable cause. If someone's only connection was that he was Atta's car mechanic (or plumber or whatever), then the government should discover the truth quickly and quit intercepting the man's calls.

From what I've heard, there have been judges overseeing the process. While they may not be approving each wiretap before it happens, their presence suggests that the government is using checks and balances to protect innocent citizens. Furthermore, I don't have a problem with some branch of government other than the judiciary making the probable cause determination on Muslim jihadist issues. Someone should be second-guessing any individual's determination that a wiretap is needed, but that role could be filled by a separate group in Justice or Homeland Security. The important point is that there really is probable cause and that someone isn't using government power to carry out a personal grudge.

Bill

[Boot Hill]

article:   "Jimmy Carter's Attorney General, Griffin Bell, emphasized when FISA passed that the law 'does not take away the power of the President under the Constitution'."

And here is the President's authority under the Constitution...

"However, because of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm what we held in United States v. Clay, supra, that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence."

--United States v. Brown, 484 F.2d 418, 426 (1973)

"We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance."

--U.S. v. Truong Dinh Hung, 629 F.2d 908, 913 (1980)

"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."

--United States v. Duggan, 743 F.2d 59 (1984)

"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information."

--In re Sealed Case, 310, F3d. 717, 742 (2002)

"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."

--In re Sealed Case, 310, F3d. 717, 742 (2002)

[Christian4Bush]

bttt