December 20, 2005

Spying: The definitive Delaware blog post

OK, so much for humility.

It's certainly no surprise that the Wilmington News Journal editorial writers have opined against the president over the NSA spying flap. I wonder if the WNJ came out against the ECHELON project when "60 Minutes" did its exposé on it? Ha.

Two additional tidbits on the whole shebang today: First is a New York Sun article which says

Reasonable people may differ over the correct place to draw the line between civil liberties and national security in wartime, but this strikes us as a pretty clear-cut case. The Fourth Amendment states, "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."

At issue is whether the listening in on overseas phone conversations is, in a time of war, "unreasonable." A person is now subject to a warrantless search when boarding an airplane, entering the New York subway system, or even entering the building that houses the office of the New York Civil Liberties Union. Why should an international phone call be inviolate?

Beyond the Fourth Amendment, the law that is said to restrict the Bush administration's activities is the Foreign Intelligence Surveillance Act of 1978. But, contrary to what you may read in some other newspapers, that law does not require that all such surveillance be authorized by a court. The law provides at least two special exceptions to the requirement of a court order. As FISA has been integrated into Title 50 of the U.S. Code, Chapter 36, Subchapter I, Section 1802, one such provision is helpfully headed, "Electronic surveillance authorization without court order."

This "without court order" was so clear that even President Carter, a Democrat not known for his vigilance in the war on terror, issued an executive order on May 23, 1979, stating, "Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order." He said, "without a court order."

Nevertheless, this won't stop Congressional Democrats -- even those who were briefed about the program (like Harry Reid) -- from blasting Bush and co. 'Cause that's what they do, after all. And not much else. Have a plan for Iraq? We'll get back to you. Have a plan to fight terrorists? We'll get back to you. Have a plan for criticizing President Bush? Here's a mountain of papers full of ideas.

As I mentioned yesterday, "great" presidents past have gone farther -- much farther -- than George W. Bush in utilizing questionable constitutional tactics during time of war. Abraham Lincoln unilaterally suspended habeas corpus -- in large part to silence critics of his policies (most notably the "Copperheads"). Lincoln's most outspoken critic, Clement L. Vallandigham, was seized in the middle of the night, and "within 24 hours after his arrest, he is brought before eight army officers who put him on trial for making disloyal speeches against the government."

In the last century, President Franklin Roosevelt, on February 19, 1942 signed Executive Order 9066 which provided for the internment of Japanese-Americans -- without due process. A year later, internees over age 17 were required to fill out "loyalty" questionnaires.

Were either of the above presidents impeached for these "gross transgressions" of the Constitution? Of course not. So now we have President Bush authorizing surveillance of communications where one party may be a US resident/citizen in time of de facto war, and already the calls for the "I" word are surfacing.

Chalk this up to the "It's Only A Problem If A Democrat Does It" file: Cliff May picks up on former Clinton deputy attorney general (and later 9/11 Commission member) Jamie Gorelick's blatant flip-flop --

"The issue here is this: If you're John McCain and you just got Congress to agree to limits on interrogation techniques, why would you think that limits anything if the executive branch can ignore can ignore it by asserting its inherent authority?" - Jamie Gorelick, former deputy attorney general under President Clinton, in today's Washington Post, p. A10.


"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 and that the President may, as has been done, delegate this authority to the Attorney General.

"It is important to understand, that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities." - Jamie Gorelick testifying before the Senate Intelligence Committee on July 14, 1994, as quoted by Byron today elsewhere on NRO.

Byron York has more here.

Elsewhere, Jonathan Alter picks up on the Abraham Lincoln theme:

We're seeing clearly now that Bush thought 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War.

Although, again, Bush is not even close in comparison. (But, certainly, it can be argued 9/11 was no Civil War.)

Huffington Post's Geoffrey Stone gets apoplectic on "King George."

And, the CATO Institute noted some interesting info way back in 1997:

The Clinton administration has repeatedly attempted to play down the significance of the warrant clause. In fact, President Clinton has asserted the power to conduct warrantless searches, warrantless drug testing of public school students, and warrantless wiretapping. It is unclear why the president made warrantless roving wiretaps a priority matter since judges routinely approve wiretap applications by federal prosecutors. According to a 1995 report by the Administrative Office of U.S. Courts, it had been years since a federal district court turned down a prosecutor's request for a wiretap order. [68] President Clinton is apparently seeking to free his administration from any potential judicial interference with its wiretapping plans. There is a problem, of course, with the power that the president desires: it is precisely the sort of unchecked power that the Fourth Amendment's warrant clause was designed to curb. As the Supreme Court noted in Katz v. United States (1967), the judicial procedure of antecedent justification before a neutral magistrate is a "constitutional precondition," not only to the search of a home, but also to eavesdropping on private conversations within the home. [69]

President Clinton also lobbied for and signed the Orwellian Communications Assistance for Law Enforcement Act, which is forcing every telephone company in America to retrofit its phone lines and networks so that they will be more accessible to police wiretaps.

Posted by Hube at December 20, 2005 07:01 PM | TrackBack

Comments  (We reserve the right to edit and/or delete any comments. If your comment is blocked or won't post, e-mail us and we'll post it for you.)

Democrats response is so typical and boring.....more of the same...what else do they have to offer? Not much........Lieberman speaks the truth and is castigated for it......come on over Joe.

Posted by: schmitt at December 20, 2005 09:05 PM

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