Bill Kristol and Gary Schmitt explain the constitutional law very clearly in today’s Washington Post:
A U.S. president has just received word that American counterterrorist operatives have captured a senior al Qaeda operative in Pakistan. Among his possessions are a couple of cell phones — phones that contain several American phone numbers. In the wake of Sept. 11, 2001, what’s a president to do?
If the president were taking the advice offered by some politicians and pundits in recent days, he would order the attorney general to go to the Foreign Intelligence Surveillance Court. The attorney general would ask that panel of federal judges for a warrant under the Foreign Intelligence Surveillance Act (FISA) to begin eavesdropping on those telephone numbers, to determine whether any individual associated with those numbers was involved in terrorist activities.
But the attorney general might have to tell the president he might well not be able to get that warrant. FISA requires the attorney general to convince the panel that there is “probable cause to believe” that the target of the surveillance is an agent of a foreign power or a terrorist. Yet where is the evidence to support such a finding? Who knows why the person seized in Pakistan was calling these people? Even terrorists make innocent calls and have relationships with folks who are not themselves terrorists.
The difficulty with FISA is the standard it imposes for obtaining a warrant aimed at a “U.S. person” — a U.S. citizen or a legal alien: The standard suggests that, for all practical purposes, the Justice Department must already have in hand evidence that someone is a problem before they seek a warrant.
Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI’s attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don’t rise to the level of probable cause under FISA.
. . .
This is not an argument for an unfettered executive prerogative. Under our system of separated powers, Congress has the right and the ability to judge whether President Bush has in fact used his executive discretion soundly, and to hold him responsible if he hasn’t. But to engage in demagogic rhetoric about “imperial” presidents and “monarchic” pretensions, with no evidence that the president has abused his discretion, is foolish and irresponsible.
The MSM has once again diverted attention from the priority issues to another fruitless scandal hunt. Sadly, the damage to world security has already been done.
Wretchard’s analysis is also well worth a read:
. . . But whatever the legalities of the wiretapping, the fate of this particular operation was effectively decided — not by the New York Times, it’s fair to say — but by whoever took it upon himself to leak it to them. The judgment on the wiretap’s operational security had been handed down, as effectively as a unanimous decision from the Supreme Court. If your life had to depend on this operation’s secrecy, then kiss your a… goodbye. President Bush had futilely lamented an earlier leak.
“In the late 1990s, our government was following Osama bin Laden because he was using a certain type of telephone. And then the fact that we were following Osama bin Laden because he was using a certain type of telephone made it into the press as the result of a leak,” he said.
The comments to Wretchard’s post are useful – e.g., this from Wretchard:
In way, the NYT used private ‘wiretap’, information acquired through a leak — without the benefit of a court order — to expose a government wiretap. Now events may prove them justified in their actions, but how did they make that determination except through their own judgment?
Emily Francona notes that there is an oversight system, which includes, among others, Congressional leaders from the Democratic Party. Unless those Congressmen knew less than the NYT then the newspaper acted even though those charged with oversight chose not to. Now the NYT may claim it knew more than the Democratic Congressmen; because Bush misled them, etc, and was therefore justified in acting differently. But how did they know they knew more? No one is going to admit to comparing notes, as that would be tantamount to confessing a security violation. But you can see the difficulties.
The NYT’s argument, I think, must rest on the assertion that this expose was of exceptional public interest, because I do not think you can argue it should be standard operating procedure for a newspaper to arbitrate what military secrets should remain so, unless one is also willing to assert that newspapers ought to replace the oversight system. In which case they ought to write that provision into the newspaper Shield Law.
Of one fact I am certain – such a diversionary furor would not be happening today if the Bush policies had been unsuccessful in preventing another 9/11 tragedy.
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