Please forgive my rambling, nearly incoherent examination of the issues surrounding recent revelations regarding the Administration’s efforts to combat al Qaeda in America by using the NSA to intercept and analyze calls from American citizens. My problem should be shared by all since we know so very little of the technical aspects of the NSA intercept program.
Of course, that doesn’t stop the left from wringing its hands and screaming “impeachment” and “dictatorship” at the top of its lungs. They can safely be ignored in any serious treatment of the issues involved because, let’s face it, they are not serious people. They are a joke to all but the most self deluded, self righteous, and self destructive. Not only are they not serious about this issue, but as they have made abundantly clear for more than 3 years, they are massively unserious about the War on Terror. They do not believe we are at war nor do they believe al Qaeda and other terrorist groups are the existential threat that they have proven to be over the years. Every move made to counter the threat has been criticized with such screeching obscurantism that listening to them has become something of an exercise in migraine management. They have become a splitting headache that nothing can relieve.
There are indeed thoughtful critics of this program – people with the best of intentions who question the entire domestic surveillance apparatus in its totality and wonder if indeed, the President of the United States has gone too far in trying to protect us. They base their arguments on the law and on precedent – two things for which yours truly has not the knowledge nor the training to comment on intelligently. However, like you I have my own thoughts about human nature and the relationship of citizens to their government. And this leads to a question the answer to which may ultimately decide which way I come down on this issue.
Did the President bypass the FISA court because it made his job easier or was it necessary in order to get the maximum benefit from the intercept program?
The consequences inherent in that question should be obvious. Either it was or wasn’t necessary for the President to order the warrantless searches. If it wasn’t necessary, there may in fact be grounds for impeachment – or at least a serious examination of the issue. If it was necessary, the argument should be over. For in his role as Commander in Chief, no one can seriously argue that the President is precluded from doing what is necessary to protect the country. If I’ve gotten anything from the Constitutional arguments raging across the internet, it is that one salient point. Every wartime President has used the powers and prerogatives available to him. And herein lies one of the great strengths of the Office; it is both the strongest and weakest Constitutional office in government.
The President is not only Chief Executive who “executes” laws passed by Congress, he is also Head of State as well as Commander in Chief. The arguments that took place at the Constitutional Convention over the powers of the President were long and bitter. Jeffersonian democrats believed that a Chief Executive was unnecessary, that Congress was perfectly capable of executing the laws they promulgated. Federalists were having none of that argument having just endured several years of rudderless government under the Articles of Confederation which had no separate office of Chief Executive and substituted instead a Committee of Congress to exercise executive powers.
The fascinating denouement to this debate was the unspoken realization by all that the person who would be exercising any expanded powers of the Chief Executive was sitting in that broiling hot room with them. George Washington had come to Philadelphia that muggy summer reluctantly because he knew that the biggest improvement that could be made to the Articles of Confederation was the creation of a single, powerful office of Chief Executive. And Washington knew darn well who the delegates would want to fill that office. This colored the debate over executive powers dramatically as every time a proposal was made to expand the powers of the Presidency, delegates would glance over at Washington as if to reassure themselves that the old general would shoulder the burden of office reluctantly and therefore, would not usurp the authority of Congress or the people. Washington’s self conscious reticence about exercising power was legendary especially after he became one of the few conquering generals in history to lay down his sword and return home without becoming a dictator.
Reassured by the fact that Washington would be the first President, the Convention adopted language that made the Presidency the most flexible of Constitutional offices and unlike any other, relied on the character and decency of the office’s inhabitant to practice self restraint in light of the enormous power granted by them.
Washington did not disappoint. He was extraordinarily careful, realizing more than most that any action he took would be seen as precedent for others to follow. Hence, he wrestled mightily with the exercise of his first veto which occurred on an apportionment bill. The reason he vetoed it was because he thought it unconstitutional – a judgment he believed was the only basis to veto any law Congress passed. His decision to step down from the office after two terms was also taken to make the point that the United States was a country governed by laws not be men.
The point is that both the Constitutional Convention and Washington himself were gravely concerned about the exercise of executive power, seeing a strong executive as a threat to individual liberty and to congressional prerogatives. And over the years, the Supreme Court became the chief brake on the expansion of those powers as successive courts have sought to define the most ill defined office spelled out in the Constitution. They have tried to place limits – with varying degrees of success – on what a President can legally do, even during a time of war.
They have tried to make the President’s job more difficult. Generally speaking, this is a good thing. By placing obstacles in the President’s path to unfettered power, a rough balance is maintained between the various branches of government. In the case involving NSA intercepts, the obstacle the President must navigate is the FISA court, a 1978 invention of Congress that was created to safeguard American citizens’ Constitutional rights from the emerging technical wizardry becoming available to government that allowed unprecedented intrusiveness by government agents into private communications.
But the world tends to move much faster than Congress and the Court’s ability to keep up with it. If anything has become clear regarding our efforts to keep track of al Qaeda for the last 15 years, it is that they have a disturbing ability to circumvent or defeat our efforts to glean information from them through national technical means. In short, their ability to stay hidden has put pressure on our system of checks and balances because the law has not kept up either with the technical abilities of government to snoop or our enemy’s ability to avoid detection.
And here’s where both thoughtful critics and defenders of this intercept program part company. The basic argument against the President’s authorizing this intelligence operation for warrantless searches is that it was unnecessary, that either the law could have been changed or the warrants could have been effected retroactively. The White House has said that the law couldn’t be changed without taking a chance that the entire program would have been compromised (a pretty good bet given how many blabbermouths there are on both sides of the aisle). And as far as retroactive warrants the White House seems to be all over the lot, first saying there was no time to get the warrants and then saying that the President had the authority anyway.
The truth is we just don’t know whether the technical details of the program will reveal that the White House did not have time to retroactively get warrants for searches or whether they just decided to bypass the FISA court because it was easier in the long run and didn’t want to take the chance that the court would deny them the opportunity to listen in on communications they felt were vital to national security.
Did the White House have cause to believe the FISA court would give them trouble? This article in the San Francisco Chronicle reveals some of the problems the Administration had with the court in the past:
Government records show that the Bush administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court’s approval.
A review of Justice Department reports to Congress shows that the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than the four previous presidential administrations combined.
The court’s repeated intervention in Bush administration wiretap requests may explain why the president decided to bypass the court nearly four years ago to begin secret National Security Agency spying on hundreds and possibly thousands of Americans and foreigners inside the United States, according to James Bamford, an authority on the security agency that intercepts telephone calls, e-mails, faxes and Internet communications.
What is fascinating about this article is that it reveals what may be the single most important reason for the warrantless searches; that the FISA court was more interested in the rights of people who were in direct contact with terrorists and suspected terrorists than in the safety and security of the American people:
...[T]he Bush administration had difficulty obtaining FISA court-approved wiretaps on dozens of people within the United States who were communicating with targeted al Qaeda suspects inside the United States.
“The court wouldn’t find enough ‘probable cause’ to give the Bush administration wiretap warrants on everybody that talks to or e-mails the terror suspect that they were trying to target,” Bamford said.
The 11-judge court that authorizes FISA wiretaps has approved at least 18,740 applications for electronic surveillance or physical searches from five presidential administrations since 1979.
The judges modified only two search warrant orders out of the 13,102 applications that were approved over the first 22 years of the court’s operation. In 20 of the first 21 annual reports on the court’s activities up to 1999, the Justice Department told Congress that “no orders were entered (by the FISA court) which modified or denied the requested authority” submitted by the government.
But since 2001, the judges have modified 179 of the 5,645 requests for court-ordered surveillance by the Bush administration. A total of 173 of those court-ordered “substantive modifications” took place in 2003 and 2004, the most recent years for which public records are available.
Again, without knowing the technical details of the program it is difficult to make a value judgment on the legality of it, but it would appear that the Administration’s concerns about obtaining warrants from the FISA court were indeed well founded. In fact, one could say that given the information contained in those Justice Department reports, it appears that the FISA court was either operating in a vacuum or was unaware that the United States of America was at war. Either way, the obstacles placed in the way of the Administration’s ability to spy on al Qaeda – a stateless group who uses a complex network of operatives, sympathizers, financiers, and fanatical soldiers – puts the NSA intercept program in an entirely different light. Given that the most seemingly innocuous contact could lead to preventing a massive attack on the US, it is beyond comprehension that any contact no matter how innocent appearing it may be should not have been grounds for immediate action by the government, including a warrantless search.
Where you come down on this issue then will depend on whether you believe we are in a war for survival or in a battle with stateless criminals who don’t pose a real threat to our destruction. It seems clear that the FISA judges believe the latter.
In short, it appears that the reason for the warrantless searches was not because it made the President’s job any easier. The reason could very well have been the inexplicable foot dragging by FISA which necessitated the President’s employment of broad powers exercised in his role as Commander in Chief. Dangerous? Yes. Illegal? A qualified no. I and most others would hope that this program would not be necessary. By the same token, we could all wish this war were not necessary either. But given that our enemies will not vouchsafe us the second, it may be that we must reluctantly embrace the first.
In a way, one of the basic criticisms by the left of the President’s actions is absolutely true; he couldn’t trust the FISA court. Was this one more example of Washington partisanship run amok? We’ll probably never know. But given the exigencies of war and the options open to the President when he made his decision to authorize the warrantless searches, it will be difficult to prove that the President’s actions were not justified.