The Real Warrantless Wiretapping Scandal
01.25.2008 - 11:50 AM“A White House plan to broaden the National Security Agency’s wiretapping powers won a key procedural victory in the Senate on Thursday, as backers defeated a more restrictive plan by Senate Democrats that would have imposed more court oversight on government spying,” the New York Times reported this morning.
This is good news. The defeat of the Democratic Senators’ plan will make the country safer. It also makes clear exactly how phony the entire controversy over so-called wireless wiretapping is.
In making their case, the Senate Democrats, led by Senator Leahy, have pointed to past abuses, including especially the National Security Agency’s Terrorist Surveillance Program (TSP) disclosed to the world by the New York Times.
“In December 2005,” Leahy’s report on the FISA Act amendments states, “the American public learned for the first time that shortly after 9/11 the President had authorized the NSA to conduct secret surveillance activities inside the United States completely outside of FISA, and without congressional consent.”
One is compelled to wonder, in reading such statements, whether Leahy and his colleagues believe what they are saying to be true, or want the public to believe it to be true even as they know it to be false.
When the Bush administration initiated the Terrorist Surveillance Program, Congress was briefed on the program. The briefing was, of course, confined to the “gang of eight,” the leaders of both parties in both houses of Congress, and the ranking members of the intelligence committees of the two chambers, but this was done according to Congress’s own rules regarding highly sensitive information.
More than a dozen successive briefings were repeated at regular intervals over the following years. Though Congress did not formally approve or disapprove of the program in a vote, that would not be a normal procedure for a highly classified program. In the context of secrecy, Congress did give its “consent” to the TSP program in the normal meaning of that word.
What is more, a key detail that the Leahy report fails to note, but which eight Republican senators on the Committee include in their “minority views,” is that the FISA Court itself, in a 2002 ruling, pointed out that all courts that have decided the issue, have 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.”
The Democrats who are raising a hue and cry about illegal warrantless wiretapping are wrong on the merits, and if they have read their own report, including the minority views, they know they are wrong.
They are also, undoubtedly, wrong on the politics. Could it possibly be a winning theme to block one of the of intelligence community’s most critical efforts to connect the dots and avert a second September 11? The fact that the Senate yesterday voted by 60-36 to set aside Senator Leahy’s proposals, suggests that, in at least some quarters of the Democratic party, wisdom, or honesty, or perhaps mere electoral prudence, can still be found.
| »Back to Connecting the Dots | »Back to Commentary |
January 25th, 2008 at 12:45 PM
I’m shocked: Senator Leaky Leahy playing politics with national security?
January 25th, 2008 at 2:10 PM
The Democrats are subconsciously self hating Americans. Our country is deemed to be the vile and disgusting exploiter of the planet. We richly deserve the murderous rage of the Islamic nihilists. They merely need the love and affection of a Barack Obama or a Hillary Clinton to turn them around. On a practical level, a vote for the typical Democratic Party politician is a vote against your family and loved ones.
January 25th, 2008 at 2:12 PM
It’s worth noting that the “expansion” of the president’s authority is actually nothing more than an acknowledgment that calls between foreign entities do not involve “US persons,” and therefore do not require FISA court oversight, even if the calls are physically routed through switching facilities on US soil.
It’s a real stretch to say the president’s authority is being expanded here. He always had authority to wiretap foreigners without applying to the FISA court. The routing of international calls through US-based facilities is merely a new technological wrinkle.
As the NYT article notes, one thing the lawyer-laden Senate did NOT do is provide immunity from lawsuits to phone carriers who cooperate with federal phone monitoring. Let the government fight its war; but all shall have the opportunity to enrich lawyers by suing for damages.