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Al Qaeda’s privacy rights

Posted by Richard on March 23, 2006

During Tuesday’s press conference, President Bush finally made an important point regarding the NSA surveillance program — a point that his administration ought to be making daily. If, as the Democrats all contend, this program is illegal, then why haven’t they acted to stop it? Here’s Carl Cameron’s question and Bush’s answer (emphasis added):

Q Thank you, sir. On the subject of the terrorist surveillance program —

THE PRESIDENT: Yes.

Q — not to change the tone from all this emphasis on bipartisanship, but there have been now three sponsors to a measure to censure you for the implementation of that program. The primary sponsor, Russ Feingold, has suggested that impeachment is not out of the question. And on Sunday, the number two Democrat in the Senate refused to rule that out pending an investigation. What, sir, do you think the impact of the discussion of impeachment and censure does to you and this office, and to the nation during a time of war, and in the context of the election?

THE PRESIDENT: I think during these difficult times — and they are difficult when we’re at war — the American people expect there to be a honest and open debate without needless partisanship. And that’s how I view it. I did notice that nobody from the Democrat Party has actually stood up and called for getting rid of the terrorist surveillance program. You know, if that’s what they believe, if people in the party believe that, then they ought to stand up and say it. They ought to stand up and say the tools we’re using to protect the American people shouldn’t be used. They ought to take their message to the people and say, vote for me, I promise we’re not going to have a terrorist surveillance program. That’s what they ought to be doing. That’s part of what is an open and honest debate. 

The Democrats in the House and Senate accused the President of breaking the law and denounced the NSA monitoring as unconscionable. But on the few occasions when someone asked if they’d be taking any action — such as introducing a bill to defund or terminate the program — they demurred. Just too busy with other matters, need to schedule hearings first, have to get back to you on that…

Most Democrats have no desire whatsoever to actually stop the NSA program. Most of them are, after all, sane enough to genuinely worry about phone calls from al Qaeda leaders to their agents in the U.S. They just want to bash Bush without actually changing anything.

I want those al Qaeda phone calls monitored, but I want it done legally and properly. It seems to me there are two concerns: First, is the NSA monitoring constitutional? Second, does it violate FISA?

The most reasonable argument against  the program’s constitutionality rests on the premise that the war itself is unconstitutional because Congress didn’t pass a formal declaration of war. I don’t buy that. I think a Congressional use of force authorization is the modern-day equivalent of a declaration of war and satisfies the constitutional requirement. Look at the history and intent. It’s simply not persuasive to me to argue that the Congresscritters voting for the use of force resolutions didn’t realize that they were authorizing the executive branch to wage war.

If the administration has been given the authority to wage war on al Qaeda / Islamofascists / terrorists — to bomb their buildings, destroy their supplies and equipment, and shoot them dead — then it seems to me that it must also have the authority to intercept their communications, including communications with their spies, saboteurs, and secret agents in the U.S.

Frankly, I haven’t given all that much thought to FISA. I read a few attempts, both for and against the legality of the NSA monitoring, to parse its convoluted language and decided that FISA is unclear on this issue. Given that ambiguity and Congress’ grant of war-making authority, which would seem to authorize such surveillance, it seems reasonable to conclude that the NSA program is legal.

At the least, the critics should concede that reasonable people can conclude that it’s legal. And that should take impeachment off the table — unless we’ve discarded the concept of mens rea completely or there’s evidence of criminal intent.

But regardless of whether you conclude that the program is legal or illegal, it ought to be clear that the applicability of FISA isn’t all that clear. And that, it seems to me, should suggest Congressional action. Both the President’s defenders and critics ought to be introducing legislation to clarify the legal status of the NSA monitoring.

Especially the critics. If what’s being done is illegal, as they claim, they need to take action — either to stop the monitoring or, if they think it should continue in some fashion, to spell out clearly what’s required to make it legal.

Instead, the Democrats want to denounce the "lawbreakers" and punish the "crime," but they want to let the alleged criminal activity continue. This is all about scoring points and inflicting political damage. This utter disregard for what’s in the best interests of the country and cynical manipulation of national security issues bother me more than the possibility of a technical FISA violation.

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