The combined Democrat/MSM war on information has been characterized by cheap sloganeering. The Washington Post has been perhaps the worst offender, calling Dick Cheney the Vice President of torture, for example. Indeed, the Post has attempted to preempt debate and avoid real analysis through its loose use of the word torture. It hopes to invoke images of U.S. intelligence workers dismembering suspects and administering electric shock treatment, when in fact the practices in question generally involve largely psychological techniques which the ordinary citizen probably does not consider torture.
Now the sloganeers at the Post’s editorial department have come up with a new catch-phrase — “spying on Americans.” That is the title of the paper’s lead editorial today. Spying on Americans sounds like a bad thing until one remembers that we do it all the time when we have reason to believe that Americans are engaged in, or assisting with, ordinary criminal activities — ones that pose far less of danger to society than terrorism. We certainly spy on mobsters, and the much maligned Patriot Act is in part just an attempt to permit the government to use techniques we employ against the mob to investigate terror suspects.
There are, of course, limits on the extent to which the government can “spy on Americans.” The Post editorial assumes, without discussion, that when the NSA engages in surveillance without warrants, it violates those limits. But the law in this area seems to be quite unclear. Even the headline-writers in the Post’s news department (hardly models of restraint) seem to acknowledge this fact. The front page story regarding this issue in today’s edition reads “Pushing the Limits of Wartime Powers” (not exceeding them), and the article itself says only that “some legal scholars” feel that Bush is relying on “extraordinary claims of presidential war-making power.”
But the editorialists aren’t interested in nuance. They are on a crusade which, if successful, will make it more difficult to obtain information with which to protect the lives of Americans.
UPDATE: The Post editorial dismisses the administration’s defense of surveillance without a warrant — that in certain instances there isn’t enough time — by asking “why did the administration not go to Congress and seek adjustments to the law, rather than contriving to defy it?” There are two problems with this argument. First, the Post continues to assume what it hasn’t shown — that the administration’s actions were illegal. Second, asking Congress to adjust the law would have (a) alerted terrorists to the fact that we can obtain information through this kind of surveillance and (b) taken much longer than using the court procedure the president thought isn’t always quick enough.
Thank God the editorialists at the Washington Post don’t have responsibility for protecting this country from terrorists.
JOHN adds: Critics of the NSA’s actions will always assume that the NSA’s interception of messages to known terrorists overseas is illegal. I have not yet seen anyone make a legal argument as to why that would be true. Further to Paul’s point, Hugh Hewitt writes on “Presidential Power and the Surveillance of Foreign Powers Conspiring with United States Citizens”:
Overlooked in most of the commentary on the New York Times article is the simple, undeniable fact that the president has the power to conduct warrantless surveillance of foreign powers conspiring to kill Americans or attack the government. The Fourth Amendment, which prohibits “unreasonable” searches and seizures, has not been interpreted by the Supreme Court to restrict this inherent presidential power. The 1978 Foreign Intelligence Surveillance Act (an introduction from a critic of the Act is here) cannot be read as a limit on a constitutional authority even if the Act purported to do so.
“Further, the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.” That is from the 1972 decision in United States v. United States District Court for the Eastern District of Michigan et al, (407 U.S. 297) which is where the debate over the president’s executive order ought to begin and end. The FISA statute can have no impact on a constitutional authority, any more than an Act of Congress could diminish the First Amendment protection provided newspapers. Statutes cannot add to or detract from constitutional authority.