Thursday, December 22, 2005

Formerly "Is it illegal?", currently "Is it improper?"

The implications from the beginning of the "Bush spied" story has been that Bush's authorization of wiretapping international calls to/from terrorism suspects was illegal. Now, more and more legal experts, as well as bloggers doing the job that journalists used to do, are discovering that the warrantless wiretaps are certainly and unquestionably legal. The latest legal opinion comes from, of all people, Clinton's former associate A.G. John Schmidt. From the Chicago Tribune:
President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.
In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."
But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."
You know..."constitutional power"? For those of you stuck on stupid and vote Democrat, the Constitution is that document that you folks find quaint that forms the blueprint of our government. Usually, you guys only reference the Consitution when you're inventing new "rights" and ignoring the original rights expressly stated. But I digress...

Please read Schmidt's's not very long, but it gives great legal insight (without drowning the reader in "legalese") to the matter. Schmidt does close with a valid point about potential abuse:
Should we be afraid of this inherent presidential power? Of course. If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense. The danger is that surveillance will not be used solely for that narrow and extraordinary purpose.

But we cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by Sept.11. I do not believe the Constitution allows Congress to take away from the president the inherent authority to act in response to a foreign attack. That inherent power is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history, could well need again.
So the question can no longer be "Is it illegal?", since the answer is clearly "No." The question then becomes "Is it improper?" That, my friends, is a valid question on which reasonable people (which will exclude a lot of folks) can disagree.

If the left's genuine concern was the potential for abuse of such monitoring, such as what their stud Bill Clinton did with anti-abortion clergy or American companies, then I could see their cause for concern. However, considering that their concerns are more driven by BDS (Bush Derangement Syndrome) than any faux fears of privacy or defense (* snort! * Yeah, libs and defense!), you'll have to forgive me for reflexively dismissing their concerns.