Spies and Lying Editorialists
Posted by John
Power Line
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] the 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.'”
Butenko blows a giant hole in the Times' legal theory. What does the Times have to say about the Butenko case? Nothing. It doesn't mention it.
Then there's United States v. Truong, 629 F.2d 908 (4th Cir. 1980), where the court sustained the federal government's position, which it summarized as follows:
In the area of foreign intelligence, the government
contends, the President may authorize surveillance
without seeking a judicial warrant because of his
constitutional prerogatives in the area of foreign
affairs.
The court explained why the President has the inherent constitutional authority to order warrantless electronic surveillance:
For several reasons, the needs of the executive are so
compelling in the area of foreign intelligence, unlike
the area of domestic security, that a uniform warrant
requirement would, following [United States v. United
States District Court, 407 U.S. 297 (1972)], “unduly
frustrate” the President in carrying out his foreign
affairs responsibilities. First of all, attempts to
counter foreign threats to the national security require
the utmost stealth, speed and secrecy. A warrant
requirement would add a procedural hurdle that would
reduce the flexibility of executive foreign intelligence
activities, in some cases delay executive response to
foreign intelligence threats, and increase the chance of
leaks regarding sensitive executive operations.
If the 4th Circuit Court of Appeals was right, then the New York Times is wrong. So, surely the Times must have some persuasive rebuttal to the Truong decision in support of its technical legal argument? No. The Times never refers to Truong.
United States v. Duggan, 743 F.2d 59 (2nd Cir. 1984), was a terrorism case in which the court, among other rulings, upheld the constitutionality of the Foreign Intelligence Surveillance Act (FISA). The court wrote:
Prior to the enactment of FISA, virtually every court
that had addressed the issue had concluded that the
President had the inherent power to conduct warrantless
electronic surveillance to collect foreign intelligence
information, and that such surveillances constituted an
exception to the warrant requirement of the Fourth
Amendment.
A damning summary. Surely the Times has a rejoinder to the court's statement that the universal weight of authority is against the paper's position? Nope.
Those cases are pre-FISA, of course, and the Times says that FISA is the statute the administration "violated." So maybe the Times would argue that the pre-FISA cases don't apply. Such a claim would be unpersuasive on its face, since Congress cannot by statute or otherwise strip the executive branch of its constitutional powers. But there is, in fact, a post-FISA case that specifically addresses the question whether the passage of that statute could have changed the pre-existing principle that the President has constitutional power to order warrantless surveillance for foreign intelligence purposes. Since that case is directly on point, surely the Times discussed it. Right? Wrong. The Times never mentions In re: Sealed Case No. 02-001, decided in 2002 by the Foreign Intelligence Surveillance Court of Review, the very court which is responsible for interpreting and applying FISA.
It's not hard to figure out why the Times editorialists pretend that Sealed Case No 02-001 doesn't exist. It conclusively refutes their legal position:
The Truong court, as did all the other courts to have
decided the issue, held that the President did have
inherent authority to conduct warrantless searches to
obtain foreign intelligence information. ... We take for
granted that the President does have that authority and,
assuming that is so, FISA could not encroach on the
President’s constitutional power.
So the only federal appellate court that has ruled on the issue says that the New York Times is wrong about the law. The Times, ostrich-like, pretends that the federal courts don't exist.
This is, if you think about it, a rather weird situation. The Times, in company with lots of other liberals, agrees that the administration is doing a good thing by intercepting international messages between al Qaeda terrorists and their agents in the U.S. Their only complaint is that in a relative handful of cases, they want the administration to follow a different procedure--a procedure which, on their telling, will not perceptibly encumber the administration's ability to carry out the international surveillance in question. So their grievance is a technical one.
The problem is, you can't base a technical legal argument on what you think the law ought to be. You can only base a technical legal argument on what the law actually is. And the current state of the law, as uniformly articulated by the federal courts, is that the NSA's international surveillance program is a legal implementation of the President's constitutional powers.
So, technically speaking, the Times is simply wrong.
Which leaves me wondering what the hyperventilating is all about.
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