Truthnews Commentary, December 29, 2005

One of the chief complaints about the 9/11 attacks, other than the three thousand dead people and massive amounts of rubble in Manhattan, was that the various U.S. intelligence agencies were unable prevent the attack. Now, the news media and civil liberties advocates are upset because there's too much intelligence.

The New York Times on December 16 reported that the president had authorized the monitoring of telephone and e-mail communications inside the United States without the prior approval of a judge. Apparently, this has been going on since 2002. President Bush, in a radio address, sought to explain himself. He said that he had authorized the National Security Agency (NSA) "to intercept the international communications of people with known links to Al-Qaeda and related terrorist organizations." Intercepting the international communications of known terrorists is such a grave violation of civil liberties that John Kerry and other Democrats are calling for Bush's impeachment. However, based on the number of American skyscrapers that Al-Qaeda has managed to knock down since 9/11 (last count, 0), Bush's strategy seems to have worked.

The chief complaint against Bush is that monitoring communications between Al-Qaeda and its agents within the U.S. supposedly violates the U.S. constitution. So let's take a look at this issue. The Fourth Amendment to the U.S. constitution states, in its entirety, the following:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

We should observe two points about the Fourth Amendment:

• It applies to your person, house, papers, and effects

• It prohibits "unreasonable searches and seizures," unless authorized by warrant

Several types of search and seizure have long been considered appropriate under the Fourth Amendment, even when not supported by warrant. In particular, the principle of "hot pursuit" has been applied, where, if the police are chasing a fugitive and they see him take refuge in your house, they can enter your house without a warrant and make an arrest. In addition, searches of your person and effects at airports, courthouses, and other public buildings are considered reasonable because of the security threat, and because you're voluntarily entering the area that requires the search. So, warrantless searches are legal if they're considered "reasonable."

Now, if you re-read the Fourth Amendment, you'll see that it applies to your "person, house, papers, and effects," but not to your communications. However, in 1967, an activist Supreme Court twisted the constitution to make it say what they thought it should say. Since then, warrants are required for some wiretaps. It seems that the Supremes assumed that the Founding Fathers didn't mention communications in the Fourth Amendment because there were no communications in 1789, not realizing that the Constitution expressly authorized Congress to set up the Post Office without making mail secure from government snooping. Be that as it may, in the 1967 case, the Supremes noted that warrant requirements do not apply to issues of national security. However, in 1972, they flip flopped and decided to require warrants for some national security surveillance, specifically, that in which both ends of the communication were in the U.S. Attorney Robert F. Turner, writing in the Wall Street Journal, explains it this way:

The Supreme Court in the 1972 "Keith case" held that a warrant was required for national security wiretaps involving purely domestic targets, but expressly distinguished the case from one involving wiretapping "foreign powers" or their agents in this country. In the 1980 Truong case, the Fourth U.S. Circuit Court of Appeals upheld the warrantless surveillance of a foreign power, its agent or collaborators (including U.S. citizens) when the "primary purpose" of the intercepts was for "foreign intelligence" rather than law enforcement purposes. Every court of appeals that has considered the issue has upheld an inherent presidential power to conduct warrantless foreign intelligence searches; and in 2002 the U.S. Foreign Intelligence Surveillance Court of Review, created by the FISA statute, accepted that "the president does have that authority" and noted "FISA could not encroach on the president's constitutional power."

FISA, the Foreign Intelligence Surveillance Act, was an attempt by Congress in 1978 to simultaneously regulate and facilitate the electronic surveillance of foreign agents working in the U.S. The act set up a special court to issue warrants. Again, Mr. Turner writes,

Keep in mind that while the Carter administration asked Congress to enact the FISA statute in 1978, Attorney General Griffin Bell emphasized that the law "does not take away the power of the president under the Constitution." And in 1994, when the Clinton administration invited Congress to expand FISA to cover physical as well as electronic searches, the associate attorney general testified: "Our seeking legislation in no way should suggest that we do not believe we have inherent authority" under the Constitution. "We do," she concluded.

In other words, the Constitution provides the Presidential authority, and an act of Congress, such as FISA, cannot limit that authority. John Schmidt, associate attorney general in the Clinton administration, wrote: "Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms."

Bush's Attorney General Alberto Gonzales said that the electronic surveillance was authorized by the congressional resolution passed after the 9/11 attacks authorizing the use of "all necessary and appropriate force" against al Qaeda. Gonzales's conclusion is based on a Supreme Court opinion that upheld the detention of Yaser Esam Hamdi, a U.S. citizen and enemy combatant. "Detention" is an obvious element of any authorization to use force. Gonzales argues that so is gathering intelligence about the enemy's plans by intercepting his communications.

Now, the term "wiretap" has often been used to describe the NSA's surveillance of terrorist communications, but the term "wiretap" is a misnomer. When you hear the word wiretap, you think of, well, tapping into a wire. And if some federal agent is crawling around in your house putting a microphone in your telephone, then it seems reasonable to require a warrant because HE'S ENTERING YOUR HOUSE. But much of our telecommunications these days are transmitted by wireless means, particularly by satellite and microwave. It is these wireless communications that the NSA specializes in intercepting and decoding. If you think your telephone and e-mail communications are secure, think again. Once you broadcast on the electromagnetic spectrum, your communications are subject to interception by anyone with the technology, including Russia, the China, and the France. In many ways, electronic communications are like signal flags and smoke signals. They can be seen by anyone, and the trick is figuring out what they mean. Did the U.S. army, in 1870, have to get a search warrant to monitor Indian smoke signals?

We should also note that, when monitoring communications by satellite, computer, or cell phones, it's impossible to limit the surveillance to one particular communication. You intercept everything and then filter it to find what you need. This makes it difficult to bend the Fourth Amendment to cover these types of communication, because the Fourth Amendment requires that a warrant describe "the place to be searched, and the persons or things to be seized." FISA wasn't set up for this type of surveillance. A warrant would have to say something along the lines of "I want to search the state of California and seize anything belonging to Al-Qaeda."

William Kristol, writing in the "Weekly Standard," commented,

Was the president to ignore the obvious incapacity of any court, operating under any intelligible legal standard, to judge surveillance decisions involving the sweeping of massive numbers of cell phones and emails by high-speed computers in order even to know where to focus resources? Was the president, in the wake of 9/11, and with the threat of imminent new attacks, really supposed to sit on his hands and gamble that Congress might figure out a way to fix FISA, if it could even be fixed?

In fact, the definition of electronic surveillance as contained in FISA does not include the wholesale surveillance engaged in by the NSA. The relevant FISA definition for wireless communication is:

...the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States[emphasis added], if the contents are acquired by intentionally targeting that United States person...

The NSA monitoring has borne fruit. On December 19, General Michael Hayden, former director of the NSA and now Deputy Director of National Intelligence (a position created after 9/11), briefed journalists on the NSA's terrorist monitoring effort. Hayden told the journalists, "This program has been successful in detecting and preventing attacks inside the United States." He added that "we have got information through this program that would not otherwise have been available."

In the view of the attorneys general of both the Carter and the Clinton administration, the president has the authority to conduct warrantless surveillance of enemy agents. Even when requiring warrants for wiretaps, the Supreme Court made a specific exception for surveillance of enemy agents. Congress may be upset, but that's the authority granted the President under the Constitution. If they don't like it, let them amend the Constitution. In the process, they can explain why they think that enemy agents bent on the destruction of the United States should have civil liberties.

Again, Robert Turner writing in the Wall Street Journal, says:

For nearly 200 years it was understood by all three branches that intelligence collection--especially in wartime--was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of "executive power" to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947.

Washington Post columnist Charles Krauthammer explained the situation this way:

Presidents always jealously guard executive authority. And Congress always wants to challenge the scope of that authority. This tug of war is a bipartisan and constant feature of the American system of separation of powers. President Bush's circumvention of FISA is a classic separation-of-powers dispute in the area in which these powers are most in dispute -- war powers.

We don't like the idea of the government snooping on our e-mail or phone calls anymore than the ACLU does. But in wartime, security becomes more important than civil liberty. The problem is that many on the left don't recognize that we're in a war.