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Impeaching "Big Brother"? By: Ben Johnson
FrontPageMagazine.com | Wednesday, December 21, 2005

THE AMERICAN LEFT IS TREATING THE NEWS that President Bush authorized the National Security Agency to wiretap phone calls between foreign-based terrorists and contacts currently resident in America without a warrant as though it were the Valerie Plame leak and the National Guard forgeries rolled into one. Long desperate to overturn the last two presidential elections, leftists in Congress have elevated the president’s vigilance into a national scandal. (Perhaps they’ll revive Michael Dukakis’ 1988 slogan: “This impeachment isn’t about ideology; it’s about competence!”) The “domestic spying” scandal closely resembles Plamegate and the National Guard story; it seems like another case in which the Left seeks to crucify the commander-in-chief who is apparently guilty of no crime.

The New York Times revealed in a front page story December 16th that the Bush administration allowed the NSA to wiretap calls involving someone resident in the United States (N.B.: not necessarily an American citizen) without seeking a court warrant, as long as at least one party to the call was overseas and the American was a known al-Qaeda contact.


Seeing how a real president safeguards his country, the Left immediately went ballistic.


Howard Dean compared the president to another famous George – Orwell. “Americans need a president who will keep them safe and enforce the law. We don't need a Big Brother.”


Sen. Barbara Boxer, D-CA, has asked four presidential scholars to send their opinions about whether the president’s actions justified an impeachment to her “as soon as possible.” (She was inspired by hearing longtime Bush-hater John Dean state, “Bush is the first president to admit an impeachable offense.”) Her California colleague, Dianne Feinstein, joined Senate Democrats Carl Levin, and Ron Wyden – along with Republican “maverick” Chuck Hagel and “centrist” Olympia Snowe – in a call for the Senate Intelligence and Judiciary Committees to investigate the wiretaps. Harry Reid and Republican Arlen Specter, too, want to schedule hearings, undoubtedly before Samuel Alito is ever brought before Specter’s committee for the tiny matter of filling a lifetime post in the third co-equal branch of government.


Today, a leftist judge joined their ranks. Federal Intelligence Surveillance Circuit Court According to the Washington Post, Judge James Robertson resigned his judgeship in protest over Bush’s policy. Few will weep; the Clinton-appointed leftist ruled al-Qaeda operatives may have the right to be tried in a regular court of law rather than a military tribune in the Hamadan v. Rumsfeld case, granting foreign jihadists the same right as jaywalkers and speeders. (Robertson was overturned on appeal by a panel of judges that included current Supreme Court Chief Justice John Roberts.)


The New York Times and the ACLU are now trying to somehow link this to unrelated surveillance by another federal agency, the FBI, against American eco-terrorists who had engaged in more than 1,000 criminal acts causing more than $100 million in damage. (See John Perazzo’s lead story in today’s issue for the details.)


And James Risen, the man whose book release pushed the story’s deadline up more than a year, is now trying to find another smoking gun for the impeachment crowd. In his story in today’s NYT, “Spying Program Snared U.S. Calls,” Risen cited “at least one instance” in which both the terrorist and his contact were inside the United States, and the NSA did not obtain a judicial warrant. However, Risen buries in the story the fact that this was “accidental” and “caused by technical glitches,” as well as the testimony of a retired NSA official who testifies how hard it is to strain out all domestic calls.


This is the grand felony Boxer wants Senate leftists to impeach Bush over? Talk about going to war over faulty intelligence.


The most important misconception about this surveillance program, initiated shortly after 9/11, is that Bush somehow targeted random Americans. Bush narrowly tailored his authorization to listen in on conversations in which one party was overseas and the individual in America was a known al-Qaeda associate. Four-star General Michael Hayden, now with the NSA, dismissed the myth of “Big Brother” tactics in a press conference yesterday. When asked if the NSA is keeping tabs on thousands of Americans with no ties to terrorism, Gen. Hayden responded, “We can't waste resources on targets that simply don't provide valuable information.”


A more important myth – one that could possibly result in impeachment – is that Bush’s aggressive protective measures somehow violated the law. In fact, surveillance without a warrant has been the law of the land for nearly 30 years and was resoundingly upheld at least once during his first term. In 2002, citing an already 22-year-old precedent, the Federal Intelligence Surveillance Court of Review – the court that over sees the process whereby the president taps foreigners – ruled “as did all other courts” 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.


That certainly seems open-and-shut.


Nor is he the first president to take this “unprecedented” step. Former Georgia Congressman Bob Barr told “60 Minutes” that President Bill Clinton’s Echelon program intercepted “literally millions of communications involving United States citizens.” An NSA source says this included then-U.S. Senator Strom Thurmond.


Clinton also authorized the NSA to wiretap and search the home of CIA spy Aldrich Ames. He soon broadened the NSA’s authority to include “classified electronic surveillance techniques, such as infrared sensors to observe people inside their homes.


Jamie Gorelick, the disgraced 9/11 Commission member and former high-ranking Clinton Justice Department official, told the Senate Intelligence Committee in 1994, “The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.”


A few months later (on February 9, 1995), Clinton signed Executive Order 12949, stating, “the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year.”


The Washington Post quotes Bush-41 Attorney General Bill Barr’s view on the matter: “The Constitution's intent when we’re under attack from outside is to place maximum power in the president, and the other branches, and especially the courts, don't act as a check on the president's authority against the enemy.”


Ronald Reagan had recognized the right to spy on foreign intelligence agents without a warrant, although he did not wage a hot war against Marxism (at least, not for more than a few days in Grenada). Even rock-ribbed Cold Warrior Jimmy Carter signed Executive Order 12139 on May 23, 1979, declaring that “the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order.”


The definition of “foreign intelligence” should make clear: this includes American contacts communicating with the other side. The FISA Act does not grant “an association which is a foreign power” the legal privileges of an American citizen. Thus, even if an American joins the Afghan-Pakistan-Iraq-based terrorist group called al-Qaeda – like Steve Earle epic hero, “American Taliban” John Walker Lindh – he is now fair game as a member of “an association which is a foreign power.”


Thus far, no harm-no foul.


Critics object circumventing FISA courts to conduct surveillance against terrorists without a warrant is unnecessary, because the president has permission to conduct this kind of eavesdropping for 72 hours before obtaining a warrant. But obtaining a FISA warrant may take longer than 72 hours, and NSA agents may never have been able to obtain a warrant in the first place. Judge Colleen Kollar-Kotelly, another Clinton-appointee, insisted information gathered through this program, which completely legal, not be used in her court to gain a FISA wiretap. Thus, the NSA may have had the authority to gather emergency surveillance, but thanks to leftist Clinton-appointed federal judges, they could not use it to save American lives. At least Kollar-Kotelly rules consistently against wiretapping – she also ruled the U.S. government should not be able to monitor Gitmo detainees’ conversations with their lawyers, as this would “erode” the “bedrock principle” of attorney-client confidentiality. 


It should become clear, in this kind of hostile legal environment, it may be wiser not to grant civil liberties to foreign-based jihadist groups, even if one of their assistants happens to be wintering in Miami.


This program is not illegal, unconstitutional, nor impeachable. The leaks that made the story possible are illegal.


That is the case Bush made in his press conference on Monday. That is the legal defense John Kerry – who “joked” last week about impeaching Bush after the midterm elections – calls “lame,” saying the program “doesn’t uphold our Constitution.” No wonder NSA personnel worried about Kerry being elected president.


Vice President Dick Cheney also defended the program, saying it has “saved thousands of lives.” Administration officials say Bush’s program has uncovered Iyman Faris’ plan to destroy the Brooklyn Bridge and another bombing plot in Britain. Heaven knows what plots they found that they could not publicly disclose.


In addition to being effective, the NSA’s spying was neither illegal nor a secret from some of the same leftists who now criticize it. The White House briefed Senate Minority Leader Harry Reid, Sen. Jay Rockefeller, Sen. Bob Graham, Rep. Jane Harman, and others on this program. None took to the Senate floor to denounce the measure. Until this week.


When they created the final myth:


The Senate leftists somehow chose to conflate this story – which had been held more than a year only to be conveniently leaked at just the right moment – with the USA Patriot Act. They seized upon this windfall to dramatically change the political dynamics of irresponsibly opposing the most effective piece of anti-terrorism legislation in American history; before the story, they could never have claimed to be acting in America’s best interest. James Risen’s book deal allowed them to claim the moral high ground.


Opposing the Patriot Act, filibustering it long enough to allow it to lapse, is irresponsible and deadly. Allowing its provisions to sunset would – and for once, the Left’s favorite phrase is applicable – set back the clock in many ways to the feckless Clinton administration’s lackadaisical approach to terrorism. It would re-open some of the loopholes extant before 9/11 – and the terrorists know exactly which ones. A prolonged filibuster would re-establish Jamie Gorelick’s “wall” between federal investigators on the trail of the latest terror plots. This is the wall that kept FBI agents from arresting 20th hijacker Zacarias Moussaoui, after an overly cautious Office of Intelligence and Policy Review declined to argue the agents’ request before a magistrate. Al-Qaeda’s sleeper cells know this, and like the Senate Democrats, they’re counting the minutes until they can claim victory. The Senate Left has put its hatred of President Bush and unfounded conspiracymongering about the USA Patriot Act above the security of the nation they serve. Gleefully. Knowing the newfound freedom their actions could bestow on future hijackers, a beaming Harry Reid boasted, “We killed the Patriot Act.”


If Reid, Boxer, Kerry, and other leftists have their way, that will be the first killing of many.

Ben Johnson is Managing Editor of FrontPage Magazine and co-author, with David Horowitz, of the book Party of Defeat. He is also the author of the books Teresa Heinz Kerry's Radical Gifts (2009) and 57 Varieties of Radical Causes: Teresa Heinz Kerry's Charitable Giving (2004).

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