December 26, 2005
The New York Times' Christmas Gift
By Michael
Barone
The New York Times' Christmas gift -- sorry, holiday
gift -- to the nation's political dialogue was its Dec. 16 story
reporting that the National Security Agency has been intercepting
telephone conversations between terrorism suspects abroad and
U.S. citizens or legal residents in the United States.
What the
Times didn't bother telling its readers is that this
practice is far from new and is entirely legal. Instead, the unspoken
subtext of the story was that this was likely an illegal and certainly
a very scary invasion of Americans' rights.
Let's put
the issue very simply. The president has the power as commander
in chief under the Constitution to intercept and monitor the communications
of America's enemies. Indeed, it would be a very weird interpretation
of the Constitution to say that the commander in chief could order
U.S. forces to kill America's enemies but not to wiretap -- or,
more likely these days, electronically intercept -- their communications.
Presidents have asserted and exercised this power repeatedly and
consistently over the last quarter-century.
To be sure,
federal courts have ruled that the Fourth Amendment's bar of "unreasonable"
searches and seizures limits the president's power to intercept
communications without obtaining a warrant. But that doesn't apply
to foreign intercepts, as the Supreme Court made clear in a 1972
case, writing, "The instant case requires no judgment on
the scope of the president's surveillance power with respect to
the activities of foreign powers, within or without this country."
The federal courts of appeals for the 5th, 3rd, 9th and 4th Circuits,
in cases decided in 1970, 1974, 1977 and 1980, took the same view.
In 2002, the special federal court superintending the Foreign
Intelligence Surveillance Act wrote, "The Truong court, as
did all the other courts to have decided the issue, held that
the president did have inherent authority to conduct warrantless
searches to obtain foreign intelligence information. ... 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."
Warrantless
intercepts of the communications of foreign powers were undertaken
as long ago as 1979, by the Carter administration. In 1994, Bill
Clinton's deputy attorney general, Jamie Gorelick, testified to
Congress, "The Department of Justice believes, and the case
law supports, that the president has inherent authority to conduct
warrantless physical searches for foreign intelligence purposes."
In the Dec.
15 Chicago Tribune, John Schmidt, associate attorney
general in the Clinton administration, laid it out cold: "President
Bush's post-Sept. 11, 2001, authorization to the National Security
Agency to carry out electronic surveillance into private phone
calls and e-mails is consistent with court decisions and with
the positions of the Justice Department under prior presidents."
"News
stories" in the Times and other newspapers and many
national newscasts have largely ignored this legal record. Instead,
they are tinged with a note of hysteria and the suggestion that
fundamental freedoms have been violated by the NSA intercepts.
Earlier
this month, a Newsweek cover story depicted George W.
Bush as living inside a bubble, isolated from knowledge of the
real world. Many of the news stories about the NSA intercepts
show that it is mainstream media that are living inside a bubble,
carefully insulating themselves and their readers and viewers
from knowledge of applicable law and recent historical precedent,
determined to pursue an agenda of undermining the Bush administration
regardless of any damage to national security.
And damage
there almost certainly would be were the program to be ended,
as many Democrats and many in the mainstream media would like.
Gen. Michael Hayden, former director of NSA and now deputy national
intelligence director, has come forward to say, "This program
has been successful in detecting and preventing attacks inside
the United States."
The Constitution,
Justice Robert Jackson famously wrote, should not be interpreted
in a way that makes it "a suicide pact." The notion
that terrorists' privacy must be respected when they place a cell-phone
call to someone in the United States is in the nature of a suicide
pact. The Fourth Amendment's ban on unreasonable searches and
seizures in the United States should not be stretched into a ban
on interceptions of communications from America's enemies abroad.
The mainstream
media, inside their left-wing bubble, evidently thinks that there
is not much in the way of danger. They should take a trip to Ground
Zero, to the Sept. 11 memorial at the Pentagon, to Shanksville,
Pa., where the heroes of United flight 93 prevented the terrorists
from hitting their target in Washington.
Copyright
2005 Creators Syndicate
