The NSA Flap: Explained

In case you've been wondering what this whole NSA wiretapping business is about, the following post will help explain it in detail. It explains a lot actually.

Power Line: A Liberal Speaks: "We get a great many emails, a considerable number of which are from liberals. A few of these are thoughtful and informative. The vast majority are not. Today we got an email from a Democrat named Matt Mullen. It's above average for an email from a lefty--more coherent and less profane than most. He was responding to this post, where I related a story that Debra Burlingame told yesterday:

One of the most telling moments is when Debra Burlingame points out that prior to the September 11 attacks, the NSA was surveilling an al Qaeda member in Yemen who placed or received more than a dozen phone calls to and from a number in San Diego. Because these calls involved someone in the United States, the NSA didn't listen to them. It turned out that the "Kahlid" who was receiving the calls in San Diego was one of the September 11 hijackers. In fact, he was one of the hijackers who murdered Debra's brother, the pilot of American Airlines flight 77.

This is what Democrats and the news media call "domestic spying." Do the Democrats really want to return us to the days when al Qaeda could call its American operatives with impunity?

Mr. Mullen took offense at my question, and responded:

No dumbshit. We want the president to spy on al queda, BUT we want him to follow the damned law too!

Oh, I'm sorry, is that too nuanced for you thick headed fools?

If Hillary Clinton were doing what Bush is doing you guys would be going ape-shit.

Respectlessly, Matt Mullen

This is what passes for argument on the left. Note, first, that if the NSA program were terminated, as some have demanded, we would be right back where we were before September 11, with phone calls from terrorists into the U.S. going unheard. This can fairly be described as "call[ing] American operatives with impunity."

But Matt, like many other Democrats, admits that President Bush is doing the right thing. He agrees with the President's decision to order the NSA to intercept international terrorist communications, including those with one end in the U.S. He wants the NSA to listen in on al Qaeda calls to the U.S., but he wants the President to "follow the damned law too!" As Matt no doubt knows, we have written extensively on the legal issues surrounding the NSA terrorist surveillance program. At least five federal appellate decisions stand for the proposition that the President has the constitutional authority under Article II to order warrantless surveillance for foreign intelligence gathering purposes. This means that the NSA program is legal. Matt offers no argument or authority to the contrary.

Presumably the "damned law" Matt wants NSA to comply with is FISA. But the Constitution, as well as FISA, authorizes the President to carry out electronic surveillance. As the FISA court of appeals wrote in 2002, if FISA tried to limit the President's Article II power to conduct warrantless surveillance, it would be unconstitutional to that extent. Matt offers no comment on these legal principles. Probably he is unaware of them.

Section 109 of FISA also says that FISA does not apply where surveillance is "authorized by [another] statute." The administration argues, supported by the Hamdi case, that Congress's Authorizaton for the Use of Military Force authorizes intercepting enemy intelligence, which, like detaining enemy combatants, is a "fundamental and accepted incident of war." If the administration is right, FISA does not come into play at all. Matt must know about this argument, since it has been widely reported, but he makes no attempt to rebut it.

The essence of Matt's rather surly communication, I think, is the suggestion that the administration could "follow the damned law"--i.e., FISA's procedures--without negatively impacting its ability to intercept enemy communications. (If that were true, one can only wonder what the fuss is all about!) Like many liberals, Matt apparently doesn't understand that obtaining a FISA order is a very complicated matter. A large amount of information must be assembled, and legal opinions must be obtained. If you doubt that assembling the necessary package to place before a judge would take days, if not weeks, read 50 U.S.C. Sec. 1804.

Matt has no doubt heard on the mainstream media and left-wing web sites that FISA's onerous procedures are really no problem, since the statute contains a 72-hour "emergency" provision that would allow surveillance to begin immediately, as long as a judge signs an order within 72 hours thereafter. This, however, is wrong. As Attorney General Alberto Gonzales has patiently and repeatedly explained, surveillance cannot begin until the Attorney General makes a finding that 1) an "emergency situation exists," and 2) "the factual basis for issuance of an order under this subchapter to approve such surveillance exists." That means that even in an emergency, the same onerous factual showing that is normally made to a judge must be made to the Attorney General--legal opinions, "minimization procedures," and all. In the meantime, as the days tick off the calendar, the al Qaeda henchman overseas can continue calling his American contacts "with impunity," as I put it in my original post.

Matt, of course, knows nothing of this.

Judging from his writing style, Matt is young, probably a teenager, so there may be hope for him. But our email inbox confirms what we see when we read the newspapers: liberalism is the philosophy of the ill-informed; the intemperate; the marginal."

This last line explains, of course, the popularity of The Daily Show and Jon Stewart.