“… the only thing outrageous about this policy is the outrage itself”

That’s the best description of heard used to describe the media-fueled outrage over the NYTimes book promo article (using the Common Dreams link as the original link to the NYTimes piece is now a PPV link) and subsequent reporting on domestic ‘eavesdropping’ (of foreign communications made on American soil, I might add) that was authorized by the President shortly after the 9-11 attacks.

That fitting description was made by David B. Rivkin and Lee A. Casey who are lawyers who served in the Justice Department in the Reagan and George H. W. Bush administrations. They have an opinion piece in the NYTimes today. Snippets:

The president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing. The courts have acknowledged this authority, and numerous administrations, both Republican and Democrat, have espoused the same view. The purpose here is not to detect crime, or to build criminal prosecutions – areas where the Fourth Amendment’s warrant requirements are applicable – but to identify and prevent armed attacks on American interests at home and abroad. The attempt, by Democrats and Republicans alike, to dismantle the president’s core constitutional power in wartime is wrongheaded and should be vigorously resisted by the administration.

After all, even the administration’s sternest critics do not deny the compelling need to collect intelligence about Al Qaeda’s plans so we can thwart future attacks. So instead of challenging the program on policy grounds, most have focused on its legal propriety, specifically Mr. Bush’s decision not to follow the framework established by the 1978 Foreign Intelligence Surveillance Act.

In an effort to control counterintelligence activities in the United States during the cold war, the surveillance act established a special court, known as the FISA court, with authority to issue wiretapping warrants. Instead of having to show that it has “probable cause” to believe criminal activity is taking place (which is required to obtain a warrant in an ordinary investigation), the government can get a warrant from the FISA court when there is probable cause to believe the target of surveillance is a foreign power or its agent.

Although the administration could have sought such warrants, it chose not to for good reasons. The procedures under the surveillance act are streamlined, but nevertheless involve a number of bureaucratic steps. Furthermore, the FISA court is not a rubber stamp and may well decline to issue warrants even when wartime necessity compels surveillance. More to the point, the surveillance act was designed for the intricate “spy versus spy” world of the cold war, where move and countermove could be counted in days and hours, rather than minutes and seconds. It was not drafted to deal with the collection of intelligence involving the enemy’s military operations in wartime, when information must be put to immediate use.

Read the whole thing.

On a related note, GOP Bloggers has a list of Democrats out there who have not been afraid to go on record as saying Bush was well within his authority as President to authorize the wiretaps.

(Cross-posted at California Conservative)

Related Toldjah So posts:

Comments are closed.