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For Want of a Warrant By: Ed Morrow
FrontPageMagazine.com | Monday, February 27, 2006


It was in September when the American military intercepted a man traveling through New York. Without a search warrant and despite his bearing a letter from a high ranking Army officer giving him explicit permission to travel unhindered, the traveler was detained without being permitted to speak to a lawyer. He was unceremoniously searched, and private correspondence found upon him was confiscated. It was about to be read by a military officer when an outraged lawyer from the ACLU interceded. Faced with the threat of legal action, the military released the traveler with his private papers unviolated. Shortly thereafter, the American Revolution ended with a British victory. George Washington, Benjamin Franklin, and all those other troublesome Founding Fathers were rounded up and hanged. And today, we're all Canadians.

Of course, things didn't happen quite that way. It was September 1780, not 2006. Major John André of the British Army was the interceptee. With no stalwart ACLU to protect his privacy, André's person was searched without a court order. In his sock, the soldiers found letters between General Sir Henry Clinton, commanding the British forces in New York City, and American General Benedict Arnold. Arnold, who had fought valiantly for the American cause (he lost a leg helping win the Battle of Saratoga) had come to think the American government wasn't grateful. Less talented officers had been promoted ahead of him, and his expense accounts had been challenged. The latter was particularly irksome, for Arnold enjoyed throwing money around and had just married a young woman who also liked to live well. General George Washington, who appreciated Arnold's skills, offered him an important field command, but Arnold had decided the British would reward him better. He turned down Washington's offer, pleading poor health, and lobbied for the post of commander of the strategically vital fortifications at West Point. He claimed this job was more suited to his physical limitations, but he actually wanted the command because it was the most valuable American prize he could treacherously deliver to the British. Washington trusted Arnold and felt accommodating his health was appropriate given how it had been injured in the service of the cause of independence. Arnold got the job.

Arnold secretly corresponded with the British. André, a British officer and friend of Arnold's wife, served as courier, traveling between the lines in civilian clothing and using a pass given him by Arnold. In payment for helping the British, it was agreed that Arnold would receive a brigadier general's commission in the British Army, land in Canada, and £20,000 sterling, equal to about $1 million today. It was a generous payment, but the deal would have been a bargain. Taking West Point would have given the British control of the Hudson River and split the American colonies. An American victory after that would have been extremely unlikely. André's capture and the search of his person thwarted Arnold's plot. A warrantless search saved the United States.

In his testimony before Congress, explaining National Security Agency warrantless surveillance of communications between al Qaeda agents abroad and their associates in America, U.S. Attorney General Alberto R. Gonzales noted that the Americans during the Revolutionary War routinely intercepted private mail addressed to the British. George Washington even instructed that this mail be opened in such a way that it could be resealed without leaving evidence that it had been read. The mail could then be sent on to the British so they would be unaware that the Americans knew their secrets.

This kind of intelligence gathering hasn't been a rare thing in American history. Over and over, a bit of adept espionage, conducted without a warrant or the approval of a judge, has won victories for American arms. Yet, despite the obvious importance of espionage, Americans have often disdained it, viewing it as underhanded. The most notorious comment in this vein was made by President Herbert Hoover's Secretary of State Henry L. Stimson in 1929, after he ordered the shutdown of the State Department's code-breaking office. Stimson sniffily remarked, "Gentlemen don't read other gentlemen's mail." Just 12 years later, after Pearl Harbor was bombed by Imperial Japan, the Pacific fleet nearly smashed, and thousands of Americans killed, the United States was rudely reminded that some nations just aren't gentlemen.

Today, the American Left is surpassing Stimson's pompous pronouncement with even dumber comments about the recently disclosed warrantless surveillance President George W. Bush ordered of communications between terrorists and U.S. citizens. They claim he has broken the Foreign Intelligence Surveillance Act (FISA). Shortly after the surveillance of terrorist phone calls by the Bush administration was made public by the New York Times, New York Senator Hillary Clinton, neglecting the terrorist side of the communication, shrilly listed in a fundraising letter as one of her greatest concerns: "A secret program that spies on Americans!"

Al Gore, in a speech reminding everyone how wonderful the Electoral College is, proclaimed George W. Bush "has been breaking the law repeatedly and persistently" and suggested he should be impeached. The Clinton-Gore administration had repeatedly and persistently spied without warrants, and, as has every presidential administration since FISA was enacted, they officially declared that presidents are not restricted by FISA. Gore sternly put all of that out of his head when delivering his screed.

Former President Jimmy Carter used the occasion of Coretta Scott King's funeral to link Bush's wiretapping of terrorists to the wiretapping of Martin Luther King. Carter omitted the fact the King wiretaps were ordered by Democratic icon Robert Kennedy during the even more iconic John F. Kennedy administration and also failed to mention his administration's own warrantless domestic espionage which, in a rare moment of competence, sent two Communist Vietnamese spies to jail. Carter, who is hot on the heels of James Buchanan in the race to be worst U.S. president ever, was eager to insult George W. Bush to his face and in the presence of his wife, mother and father on live television. The Bush family are linked to Ronald Reagan, the president whose shadow Carter will always be peeping out of, blinking with quiet fury that few recognize that he was morally superior to the man who won the Cold War. Carter does have his fans. After interjecting himself into the Haiti predicament, the Korean atomic bomb crisis and a half-dozen other international squabbles, and managing to twist every single one to the disadvantage of the U.S., Carter was rewarded with a Nobel Prize. His attacks on the Iraq war were specifically identified by his nominator as the reason for his nomination. This Norwegian lefty said he wanted to send Bush a message, apparently that Norway sided with Saddam Hussein. Carter was more than happy to be a human telegram and his continued insistence that America is always wrong in every circumstance may well win him a second Nobel nomination. His heart will buzz like a bumblebee with righteous self-regard if he should win the prize again. It may delay him for seconds before he'll start campaigning for a third.

But let's return to the subject that so outraged Hillary, Al and Jimmy. For some less fevered critics, the question was why would the president bypass FISA. It has been noted that nearly all FISA requests were granted and that a provision existed allowing a search to be approved 72 hours after it was conducted. Why couldn't Bush be happy with this? Well, FISA requires a lot of paperwork. As anyone who has dealt with the government knows, "simple" forms are never simple and "quick" processes are apt to be outpaced by tired turtles trudging into a gale force wind. The reason all those FISA requests were granted is that no one was willing to do that paperwork without a very good assurance that it would be approved. Requests that had less evidence to justify them just weren't made. As for using the 72-hour exception, it usually takes more than 72 hours to put together the FISA paperwork. Knowledgeable law enforcement people have said it can take weeks. This makes it impossible to use the 72-hour loophole in all but rare cases because the administration would need to squeeze a couple of weeks' work into three days, or the request would be rejected after the search had been made. This would be an embarrassing and legally risky dilemma.

Others have also noted that the FISA rubber stamp hasn't been so easily gotten since 9/11. More requests have been denied than before that date. The government, anxious to fight terror, has pushed for approvals where there is less evidence than the legalistic judges of the FISA court have been comfortable accepting. There are even some who believe that the wiretap story was leaked to the Times by one of the FISA judges who felt the judiciary should constrain presidential war powers. However, the program was exposed, it is apparent now that the FISA process isn't fast enough to deal with the realities of fighting a war. The interception of enemy communications must be done as quickly as possible and shouldn't be slowed by paperwork. A matter of minutes may literally be a matter of life or death.

During the Congressional hearings, Democrats such as Patrick Leahy, with sham curiosity, asked, if the Bush administration didn't like FISA, then why didn't they just ask Congress to update it? Well, it's a bit like asking your snoopy, bossy neighbor if you can plant a rosebush on your lawn. You have a perfect right to do so--just as the president has a constitutional right to spy on America's enemies--but if you ask your neighbor for permission, you are giving that right away, making your decision subject to someone else's opinion. What if your neighbor wants you to plant a nice big cactus? So it is with Congress. Bush might have wound up with less authority to fight the war on terror.

We can also be sure that if the Bush administration had come hat in hand to Congress to ask for revisions in FISA, a very public and rancorous debate would have ensued as such reasonable people as Leahy, Ted Kennedy, Hillary Clinton, and Al Gore politicized the issue. They are doing just that now. The administration didn't want to make the spying public for the same reason George Washington wanted those letters resealed: if your enemy knows you're reading his mail, he'll change the way he communicates. Now that the Times has publicized the surveillance, we can be confident that this will occur. Americans may well pay in blood for the newspaper's ink.

Congressional critics have said that they should have been trusted with all the details of the surveillance. President Bush has replied that the key leaders in the House and Senate were briefed but many congressmen petulantly insist they should have been told, too. Robert F. Turner, who served as counsel to the President's Intelligence Oversight Board, in the 1980s, described in the Wall Steet Journal, how another hero of the American Revolution viewed the notion of including the legislative branch in all the secrets of war. Benjamin Franklin, with four other American statesmen, had been given the duty of forming a Committee of Secret Correspondence. One of the important tasks they took on was coaxing the French into supporting the American cause. Franklin noted that they decided to not inform the Continental Congress of aid being sent by the French because "we find by fatal experience that Congress consists of too many members to keep secrets."

Surveillance critic Leahy provides proof that Franklin's doubts about legislative discretion were well founded. He has a reputation of courting the press with bouquets of insider information. Indeed, he was kicked off the Senate Intelligence Committee for leaking top secrets to a reporter. That he now sits in judgment of a national intelligence issue through his post on the Judiciary Committee is one of American history's more ironic unpleasantries. But, to return to Arnold's treachery, spying is essential to making war.

President Bush has said that he has the Constitutional authority to wiretap communications between our enemies and their associates, including American citizens, in the U.S. The Left, and even some who should know better on the Right, complain that he is violating the civil liberties of Americans and greasing a slippery slope that will lead to the grand political pratfall of self-imposed tyranny by evading FISA. That act, concocted at the height of post-Watergate Congressional imperialism and signed by the ever-eager-to-appear-non-imperial Carter, makes it illegal for the federal government to listen in on phone calls made by U.S. citizens without the approval of a special, secret court. On multiple occasions, when he felt it was expedient, Bush didn't go to that court for approval of an order that the NSA intercept communications between terrorists and U.S. citizens. The president did this after consulting with legal experts and notifying Republican and Democratic leaders in Congress but his critics insist he doesn't have the necessary authority.

The critics should know better. No president, including Carter, has accepted that FISA prohibits the presidency from conducting espionage. Indeed, there is very good reason to believe that FISA isn't constitutional. It has long been established, through multiple judicial rulings, that the President as Commander-in-Chief has the Constitutional authority to prosecute a war even without a formal declaration of war. Espionage is as fundamental a part of war making as bullets, bombs and bayonets. The Founding Fathers knew that all the tools of war had to be available to their new government and that a president who had to wait for Congressional or judicial permission to take military action to defend the United States would be so ineffective as to endanger the nation. The Founders decided to extract the most useful aspects of a monarch for their chief executive while limiting his authority. He couldn't make laws, impose taxes, or adjudicate laws, but, when it comes to dealing with foreign powers, enforcing the law, and making war, he is "The Man." Whenever the federal judiciary has reviewed what are called the "unitary" power of the president, they have recognized them as completely constitutional, referring to the Article II of the Constitution.

Some of the Founders were a bit anxious about establishing a too-powerful central government and insisted upon a Bill of Rights to protect citizens. The portion of interest here is the 4th Amendment, which protects U.S. citizens from "unreasonable searches." However, during wartime, a search instigated by evidence of communication with the enemy isn't unreasonable. Indeed, it is extremely reasonable to seize any opportunity to know what the enemy is planning.

While the Supreme Court has ruled that executive wiretaps of domestic targets requires a warrant, they have repeatedly agreed that the Constitution allows executive spying whenever there is a foreign threat to the U.S. In 2002, the U.S. Foreign Intelligence Surveillance Court of Review, the court set up by FISA, ruled that the president had this authority and that FISA couldn't limit the president's "constitutional power."

A president -- Jimmy Carter, for example -- may find this sort of thing unrefined and seek to temporize executive power by signing his authority away but the Constitution does not allow the president to transfer his duties to others. He can't, for example, give up his right to veto legislation or to appoint federal judges. A president might voluntarily defer to the demands of Congress or the courts or other pressuring groups, as Carter did when he signed FISA, but he can't compel future presidents to also defer. Congress and the courts can't diminish the president's duties, either. Only an amendment can alter the Constitution.

Fearful critics imagine a president becoming a dictator and like to imagine the Constitution, acting like a great mechanical safety device, a sort of servomechanism, will automatically keep America on a steady, safe path. But that's not the case. The Founding Fathers gave law-making and tax-raising authority to legislative branch, the interpretation of the law to the judicial branch, and the enforcement of the law and the defense of the nation to the executive branch. They believed that this would limit the possibility of tyranny, but they also placed a great deal of faith in the people who would fill these roles and the democratic process that would put them there or pull them out. The Founding Fathers were a very unsentimental lot, with a rather sour view of humanity, but they believed that personal honor and love of country were real and guiding forces in the decisions of the government and the votes of the citizens. They believed that the people would not tolerate tyranny and placed a duty on the public through the democratic process to play their part. If a branch of government aggrandizes itself unconstitutionally, the public is supposed to reign them in through the voting booth. In this case, the public should be voting out of office those legislators who seek to give themselves or a cobbled-together secret court, the war powers that belong to the president.

John Schmidt, an associate attorney general in the Clinton Justice department, wrote in the Chicago Tribune, "Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. ... 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."

Does the president have unlimited powers to spy? No. The president's authority is limited to spying on those who are making war upon the U.S. or are a danger to it. Terrorists planning to blow up the Brooklyn Bridge fit this definition. Groups raising money to funnel to terrorists do, too. A bunch of citizens attempting to change a government policy or promote legislation don't. An ordinary citizen talking to another ordinary citizen doesn't, either. But, if a terrorist group phone's up an ordinary citizen, even if that citizen is perfectly peaceful and unsympathetic to the terrorist's goals, that communication is a valid target for government interest. For example, a bomb maker might call the local train depot to find out when a train is scheduled to arrive so that he can set a bomb timed to blow it up. The stationmaster is an innocent party but the conversation he has with the terrorists would be of great value in keeping that train from destruction.

For terrorists, being spied upon should be an occupational hazard that our government does everything it can to make an occupational reality. For ordinary citizens, being spied upon is a consequence of our enemies' actions and the real dangers our enemies create. It is a nuisance and we should insist that it be as unintrusive as possible. But we must remember that spying isn't optional in the wartime.

The terrible events of September 11, 2001 might have been prevented if there had been a little less fiddling with executive branch espionage powers by Congress. Under FISA rules, for example, the NSA couldn't report the American citizen's side of a conversation with a foreign agent that it recorded. An American citizen working with a terrorist group could say "I'm going to put the anthrax in the day care center in the federal building in Topeka on Thursday. Is that okay with you guys?" The foreign terrorist could respond "Great!" and only the "Great!" would be legally reportable to the FBI. The citizen terrorist's words would not only be unreportable, they would be erased so no one would ever hear them. An impenetrable wall was erected between those charged with international terrorism, the NSA, and those fighting intranational terrorism, the FBI. The utter stupidity of this has to be apparent to anyone, even a leader in the Democratic Party. So why the operatic outrage? One can't help but conclude that it is politically motivated and that the Democrats are willing to jeopardize national security to knock Bush down a few points in the polls.

It now appears that, while the lunatic Left loves imaging President Bush taking big, frothing bites out of the Bill of Rights with his morning coffee, the nonsensical view that spying is optional in the war on terror isn't playing well to the less looney folks back in the home districts. Congressional leaders may be looking for a face saving way to deflate their puffed up anger. President Bush is said to be offering to expand the number of congressmen he informs of FISA circumventions and Congress may make a few changes to FISA to modernize it. We must hope that Bush won't be overly accommodating.

When Major André was captured, the news was sent up the chain of command. Gen. Arnold was part of that chain and he immediately fled. He went on to serve in the British Army, but the British paid him only a portion of the sum he had asked for and Arnold died in poverty in London in 1801. By then, he may have repented his treason. Reportedly, among his last requests was that he be buried in his old American uniform. André was less fortunate. After a short military trial, he was hanged as a spy.

Arnold's treason included more than turning over West Point. He reported on Washington's plans, the placement and strength of troops, and even the public mood in America. Of the later, one secret message, now part of the Collections of the Clements Library (as quoted by the Internet encyclopedia Wikipedia), is of interest. Like Arnold's exposure through a warrantless search, it provides a bit of history to ruminate over as we think about the present war on terror, a war which Bush's critics are eager to claim is unwinnable and to which they strive to arouse opposition. Dated July 12, 1780, Arnold's message to our enemy read: "The mass of the People are heartily tired of the War, and wish to be on their former footing. They are promised great events from this year's exertion. If disappointed, you have only to persevere and the contest will soon be at an end. The present struggles are like the pangs of a dying man, violent but of a short duration."

Thankfully, Arnold's observations proved less than true. Let's hope they always will.


Ed Morrow is the author and illustrator of numerous books, including The Halloween Handbook.


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