A Really Obvious Point

I haven’t had time yet to study the legal arguments surrounding the NSA intercepts of international communications; Hugh Hewitt, for one, has addressed some of the technical issues. But there are a couple of fundamental points that, while obvious, haven’t been made often enough.

First, those who leap to the conclusion that the intercepts must be unconstitutional seem to assume that all searches require a warrant. That is not correct. The Fourth Amendment prohibits “unreasonable” searches and seizures. Warrantless searches are legal, and appropriately so, in a number of circumstances.

Second, the issue of speed is critical. When we capture a cell phone or laptop being used by a terrorist, it is usually because we captured or killed the terrorist. The amount of time we have to exploit the capture is very short. The terrorists will soon figure out that their confederate is out of business, and stop using his cell phone numbers and email addresses. So if we are to benefit from the capture, we must begin obtaining information right now. A delay of even a few days may render the information useless, as the terrorists will have realized that their colleague has been neutralized. And it is likely that the first hours or even minutes after we obtain a cell phone number or email address are most apt to yield helpful new information. So it is easy to see why going through the process needed to obtain a warrant from the FISA court would undermine the effectiveness of our anti-terror operations.

This is entirely different from the situation we are all familiar with, where wiretaps are authorized against organized crime figures. Such wiretaps are not executed in connection with an arrest. They often continue for months or even years. There is ordinarily nothing about the context to suggest that the utility of the wiretap will expire in a matter of days, if not hours. Hence the delay required to obtain a warrant is usually immaterial.

Under the circumstances we face in dealing with the terrorist threat, is it unreasonable–the Constitutional standard–to begin immediately intercepting calls being made to a captured terrorist cell phone, whether those calls originate in the U.S. or another country? Of course not.

I’m just guessing here, but I suspect that we have technology in place that allows us to begin intercepting phone calls within a matter of minutes after we learn of a phone number being used by an al Qaeda operative overseas. My guess is that there is a system into which our military can plug a new phone number, and begin receiving intercepts almost immediately. I hope so, anyway; and I’m guessing that the disclosure of this system to al Qaeda is one of the reasons why President Bush is so unhappy with the New York Times. If we do have such a technology, it certainly would help to explain the remarkable fact that the terrorists haven’t executed a successful attack on our soil since September 2001. And the disclosure of such a system, by leaking Democrats in the federal bureaucracy and the New York Times, makes it more likely, by an unknowable percentage, that al Qaeda and other terrrorist organizations will launch successful attacks in the future.

ONE MORE THING: Many people seem not to understand that the executive branch is of equal authority with the legislative and judicial branches. The President has Constitutional powers upon which Congress cannot impinge. Thus, if the President has the authority to direct the armed forces to intercept phone calls received by telephones used by terrorists in Afghanistan, as I think he surely does, that authority cannot be taken away by Congressional action. Consequently, while the fine points of FISA and the scope of Congress’s authorization of war in Iraq are interesting topics, the legality of the NSA program does not necessarily turn on statutory analysis. If, as I think, the program falls within the President’s Constitutional authority as commander in chief, there is nothing that Congress could do about it, even if it tried. Which it hasn’t.

UPDATE: Hugh Hewitt has more on this issue here.

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