| Why do people advocate warrantless wiretapping? That makes no sense. Take today's WSJ editorial:
The U.S. homeland hasn't been struck by terrorists since September 11, and one reason may be more aggressive intelligence policies. So Americans should be alarmed that one of the best intelligence tools--warrantless wiretapping of al Qaeda suspects--has recently become far less effective and is in danger of being neutered by Congressional Democrats.
The editorial then makes these claims (which are demonstrably false):
Democratic leaders were briefed on the on the program from the first...
False. This is the administration's claim, but Senators of both parties strongly deny they'd ever been briefed. Call me crazy, but based on the administration's track record, we've got to go with the Senators on this one.
...there are 11 judges in the FISA rotation, and some of them have been demanding that intelligence officials get permission in advance for wiretaps.
Note that this claim cannot be substantiated because the FISA decisions are secret. In contrast, here are the substantiated, undisputed facts: FISA allows the administration to get a warrant up to 72 hours after the wiretap has been established; and, since the implementation of FISA in 1978, not one request for a warrant has been rejected.
[The judges' demand for pre-approval] shows once again why the decisions of unaccountable judges shouldn't be allowed to supplant those of an elected Commander in Chief.
The Constitution's a b*tch, ain't it?
When the program began, certain U.S. telecom companies also cooperated with the National Security Agency. But they were sued once the program was exposed, and so some have ceased cooperating for fear of damaging liability claims.
The lawsuits were over handover of all cell phone customer records to the federal government< for their data mining project, not over warrantless wiretapping. Also, it would appear that telecom companies know they're violating the law, if they've stopped participating over fears of customer lawsuits.
But no Administration has ever conceded that FISA trumps a President's Constitutional power to place wiretaps in the name of national security.
Yes, that's because every administration since FISA knew that it was constrained by the law. No administration - until this one - has claimed its power trumps the law. It's also important to note that FISA contains explicit provisions on how the law applies during wartime. That is, even under the administration's claim that during a time of war - which hasn't been declared, BTW - it can do what it wants, it can't, according to the law.
The courts have also explicitly upheld this Presidential power. Mr. Bush was making a needless concession that Democrats have used against him as they refuse to compromise.
I know of no court case that gave the president the power to wiretap without a warrant. The only court case I can think of pertaining to warrantless wiretapping was the dismissal of a lawsuit brought by the ACLU and others against the federal government, onthe grounds that the plaintiffs couldn't show damage. Legality of the program was not at issue.
The fact is that FISA has all the power the president needs to track suspected al Qaeda operatives. Federal agents can begin wiretapping and apply for a warrant up to 72 hours after the wiretap has been set. FISA also allows for roving wiretaps - wiretaps on any phone or connection that the suspect uses. Again, the FISA court since 1978 has yet to reject a single request for a wiretap.
So...why? Why the fight over wiretapping without a warrant? Obviously if the administration wanted a wiretap for an al Qaeda agent, they would get one - after wiretapping has already begun. That's the law, and FISA is broad enough to account for any legitimate need for a wiretap.
That's the rub. Legitimate need. The only reason for NSA to need to circumvent a judge on a wiretap is if the judge will likely reject the application for that wiretap. And the only reason that a judge would do that, is if the wiretap has nothing to do with national security, or if the wiretapping is so broad and arbitrary that it infringes on the constitutional rights of U.S. citizens. And given the administration's track record on data mining and politicization of apolitical government agencies - especially the Department of Justice -- both are reasonable to suspect.
In any case, the defense of powers assumed to the president presented in this editorial - and by the administration - is such a radical step away from our system of government as defined in the Constitution that, if successful, would turn our Republican head of government from an equal in rights and privileges to the people he represents, into an omnipotent and authoritarian head of state, above the law and far more privileged than the citizens from which he derives his right to rule.
In fact, the president would own power and privileges that would far surpass the tyrant we revolted against two hundred and thirty years ago.
Congress needs to recognize the danger posed by the president. He should be impeached. |
