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Wednesday, December 28, 2005

Spying: Are We At War?

Regarding the claimed criminality of the "domestic" surveillance of electronic communications of people suspected of communicating with terrorists by George Bush, I would like to know the answer to 2 questions:

1. Are we at war?

2. If so, do our enemies have overt imperialist objectives to overthrow our government or inflict catastrophic harm upon our citizens?

The answer to question 1 must be "Yes" since we hear time and again the soldiers who have died in the "War" in Iraq.

The answer to question 2 must be "Yes" since we have the very words of Bin Laden, Zarqawi and countless imams in mosques world-wide stating so.

Therefore, how does a statute like FISA overcome the presidential imperative and power to avoid time-consuming warrants for such eavesdropping? The Constitution says such an attempted over-riding by Congress usurpating presidential prerogative (as is allegedly attempted by this statute) can only be done by Constitutional Amendment.

Today's WSJ has a column by Robert F. Turner, co-founder of the Center for National Security Law at the University of Virginia School of Law, who states:

America is at war with a dangerous enemy. Since 9/11, the president, our intelligence services and our military forces have done a truly extraordinary job--taking the war to our enemies and keeping them from conducting a single attack within this country (so far). But we are still very much at risk, and those who seek partisan political advantage by portraying efforts to monitor communications between suspected foreign terrorists and (often unknown) Americans as being akin to Nixon's "enemies lists" are serving neither their party nor their country. The leakers of this sensitive national security activity and their Capitol Hill supporters seem determined to guarantee al Qaeda a secure communications channel into this country so long as they remember to include one sympathetic permanent resident alien not previously identified by NSA or the FBI as a foreign agent on their distribution list.

Ultimately, as the courts have noted, the test is whether the legitimate government interest involved--in this instance, discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives--outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists. And just as those of us who fly on airplanes have accepted intrusive government searches of our luggage and person without the slightest showing of probable cause, those of us who communicate (knowingly or otherwise) with foreign terrorists will have to accept the fact that Uncle Sam may be listening.

Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.

The above is absolutely correct, unless you can explain cogently that we are not at war and that the enemy does not present the danger to our country that I think it does.

Further, presidential powers such as this are completely expected under our laws. Wrote Bill Kristol and Gary Schmitt in WaPo:

A key reason the Articles of Confederation were dumped in favor of the Constitution in 1787 was because the new Constitution -- our Constitution -- created a unitary chief executive. That chief executive could, in times of war or emergency, act with the decisiveness, dispatch and, yes, secrecy, needed to protect the country and its citizens.

That is why the president uniquely swears an oath -- prescribed in the Constitution -- to preserve, protect and defend the Constitution. Implicit in that oath is the Founders' recognition that, no matter how much we might wish it to be case, Congress cannot legislate for every contingency, and judges cannot supervise many national security decisions. This will be especially true in times of war.

Are we at war or are we not?


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