Today the New York Times denounced the NSA’s terrorist surveillance program in its usual hyperventilating style, in an editorial titled “Spies, Lies and Wiretaps”. What was most striking to me about the Times’ editorial, however, was that the paper doesn’t actually want the Bush administration to stop the NSA’s international surveillance. On the contrary: the Times’ editorialists view the suggestion that the Democrats are opposed to such surveillance as libelous:
“President Bush believes if Al Qaeda is calling somebody in America, it is in our national security interest to know who they’re calling and why,” [Karl Rove] told Republican officials. “Some important Democrats clearly disagree.”
Mr. Rove knows perfectly well that no Democrat has ever said any such thing….
So monitoring calls between al Qaeda operatives overseas and their American contacts is a good thing. The Times just wants the administration to use FISA orders all the time, as opposed to the vast majority of the time. What’s more, the Times assures its readers that there is no obstacle to obtaining such orders, nor is there any perceptible inconvenience in doing so.
A casual observer would be forgiven for wondering what the fuss is about. If the Times is happy with what the administration is doing, but just wants it to follow a procedure that will yield exactly the same result with virtually no inconvenience, why is the paper so hysterical?
The answer is that the Times purports to be making a technical legal argument. Its point is that following an easy, foolproof procedure will make the necessary surveillance legal instead of illegal.
As a lawyer, I can relate to technical legal arguments. But, if you’re going to rely on a legal argument, isn’t it necessary to actually…make a legal argument? One would think so, but the Times can’t be bothered. Instead, it simply denounces the administration’s program because it “violates the law as currently written.” But does it? When lawyers make technical legal arguments, we generally cite case law. Like, for example, United States v. Clay, 430 F.2d 165 (5th Cir. 1970), in which the court held that federal statutes prohibiting wiretapping do not “[forbid] he President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest.” That seems obviously pertinent; what does the Times have to say about the Clay case? Nothing. It doesn’t mention it.
Another relevant case is United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), where the court held that no judicial warrant was necessary where “surveillances … were ‘conducted and maintained solely for the purpose of gathering foreign intelligence information.’