Tuesday, December 20, 2005

The Government and Secret Wiretaps


As you know, there has been much gnashing of teeth and rolling of eyes since The New York Times disclosed last Thursday that President Bush ordered the National Security Agency to eavesdrop on American citizens after 9/11 --- without first getting a warrant. It is the administration's contention that the eavesdropping orders were only given in cases where there was a clear link with terrorism.

OK .. before we get into this, let's explore a scenario. Some reports over the weekend have suggested that this scenario might be more fact than fiction. U.S. Intelligence agencies overseas discover the phone number of Osama bin Laden's satellite phone. Osama makes a satellite phone call to a U.S. citizen living outside of Chicago. Nobody's home. Intelligence operatives are certain that bin Laden will try to place the call again, but it may be from a different phone. They know that Osama changes phones frequently, so there is no time to waste in mining this resources. Their best chance to intercept bin Laden's next phone call is to place a tap on the U.S. citizen's phone. The next phone call may be in a matter of minutes, or hours. There is no time to go before a court to get a wiretap order. So ... what do you do? Do you put the wiretap in place immediately, or do you take the chance of missing the next phone call from Osama while trying to get a court order? Now, before you answer, imagine that this might have been a phone call from bin Laden to Mohammed Atta an hour before Atta was to board that American Airlines flight in Boston. The call was bin Laden giving Atta the final go-ahead for the attacks of 9/11. Without a court order you intercept the call, discover the plot, and save 3000 lives. Wait for a court order and the 9/11 attacks go forward.

OK .. there's your scenario. You're the president. You've taken an oath to defend the Constitution of the United States and to uphold its laws. Obviously this character living outside of Chicago has some ties to Osama bin Laden. Something may be in the works: another terrorist attack may be just hours away. Do you spend those hours trying to get a warrant? Or do you spend those hours trying to prevent the impending terrorist attack.

Now, with Bush there is, of course, no way he can win on this. In retrospect, if he goes ahead and orders the wiretaps on people who have clear ties to terrorism, he will be assailed by the left for violating the law and ignoring our rights. If it is later discovered that he was aware of someone in this country with direct ties to terrorism but didn't take immediate action to monitor their activities, he will be accused of ignoring clear threats to our country.

If you consider this situation fairly, you will probably come to the realization that you are just happy that it isn't you that has to make the decision as to how to proceed.

Now .. my feelings (as if you cared). From what I've learned thus far I'm not convinced that there was no way to get a court order for these wiretaps. I know that the administration is claiming that these wiretaps absolutely did prevent terrorist attacks in our country, and that they are critical to save American lives. They cite one particular plot to blow up the Brooklyn Bridge. If the laws of this country are not adequate to allow the president and our security agencies to act when a clear threat is present, then those laws should be considered by the congress. First and foremost the United States is a government of law. Everybody, from the urban outdoorsman seeking money for his next pint in Omaha, to the highest officials in our government, including the president, must abide by these laws. If you think that the laws aren't sufficient to allow you to do your job, try to get them changed. But follow the law. This rule-of-law thing is what makes this country so unique and so extraordinary.

Now .. has Bush broken those laws? Don't know. Not enough information yet. It should be looked into though, not in some partisan Washington show, but quietly in talks and discussions between members of the congress and the Justice Department. Oh, and speaking of members of congress. One thing does seem clear. The leading Democrats and Republicans on the House and Senate intelligence committees were briefed on these wiretap activities and knew that they were going on. These partisans cannot now step up to the microphones and condemn Bush for his actions. They knew, they are complicit.

In his radio address on Saturday President Bush criticized the media for disclosing the wiretaps. He was wrong. This is exactly what the media should be done[sic]. This is the value of the free press. While The New York Times can certainly be criticized for sitting on this story for a year, this is precisely how the American people are protected from the excesses of government and government officials by an active free press. In countries ruled by despots this news story would never make it to print. Give thanks that it is not so in our country.

I saw this over the weekend and have thought about for a while. The USA is a republic not a democracy. A republic is a government that governers by laws. So if these wiretaps are illegal then Bush is wrong. Today the law may be broken agaisnt a terrorist but whose to say whom the next President may break the law against.

As for Bush bashing the media about releasing this info, I have to agree with Boortz on this one, the media was/is doing their job. By bring these things to the people's attention it keeps the government semi-honest.

posted by David at 1:04 AM :: Permalink ::

Comments on "The Government and Secret Wiretaps"


Blogger David said ... (21 December, 2005 01:11) : 

According to this WSJ OpinionJournal article, I have it wrong on the wiretaps being illegal. If so fine, but I still do not trust too much power without oversite.

excert from the article:
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."


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