Tuesday, February 07, 2006

Wartime wiretaping cont.

On Monday morning I was able to listen to a small amount of the testimony in the hearings related to the wiretapping of terrorists under the War Powers Act. Despite my generally cynical feelings about the politicians in Washington, D.C., I continue to be shocked when I actually listen to their hearings.

I mentioned on a previous post that the kind of limited wartime wiretapping being done by the administration is clearly covered by the president’s war powers. And those war powers are ever more clearly in effect because of the resolution following 911 giving the president the power to essentially undertake a war against the Islamic terrorists attacking the United States. In addition, FISA does not really cover or contemplate the kind of situation or the kind of tactics being used in the anti-terrorist wiretapping. If it was necessary to follow the FISA rules, it would make the current program impossible.

The testimony of Attorney General Gonzalez was also fairly compelling. He was correct in saying that if the administration had come to the Congress to request legislation, it would have been doing something inappropriate and unnecessary in addition to taking the risk of alerting the terrorists to exactly what is being done and how. Certainly this entire “scandal” has already cost us a great deal in the way of actionable intelligence now that everyone is alerted to the existence of these wiretaps.

The senators’ willingness to stretch the truth and mischaracterize the program and the circumstances under which it has been undertaken was shocking. Their unwillingness to admit that legislation going on in Congress is subject to leaks to the public which could result in help to our enemies was also amazing. They actually seem to believe that the Congress was good at keeping secrets; something that is clearly not the case. The senators’ main concern was not actually legality or whether or not the current program was acceptable or desirable. Many of the Democratic senators as much as admitted that they thought that the current program should continue and should not be in any way ceased or curtailed. Their real objection was that they had not been asked for permission. The senators seemed to believe that the executive branch cannot do anything without an expressed authorization from Congress. And they seem to believe that any executive power must be in some way delineated and authorized by the Senate. They did not seem to believe that the president actually has powers that are under the Constitution and limited by the text of the Constitution. Perhaps this is because they and the judges that the left has supported so often pay so little attention to what the Constitution actually says anyway. But then even those on the right occasionally fail to pay as much attention to the constitutional text as they should. In the end, the senators mainly seem concerned about increasing the power of the Senate and about using this situation for political gain rather than about a legitimate inquiry into the powers of the president, or a legitimate inquiry into the expediency of the program as a part of the war.

It is inevitable that if the Congress seeks to create legislation to describe, limit and regulate the war powers of the presidency, they will essentially undermine those powers and usurp them. This has already happened to a certain extent with the War Powers Act and with FISA itself. It would be a mistake to expand that congressional control during a time of war. But it seems evident from the Senate hearings that the senators have more concern over whether some Americans are overheard in their business transactions or talks with loved ones than with whether or not Americans are killed. This seems like a strange set of priorities.

War powers are simple. They involve the ability to direct armies, navies and similar forces in seeking out and killing enemy combatants who are not already hors de combat. Those forces rendered hors de combat must be captured rather than killed and treated according to humane standards. It is also lawful to destroy the machines and material used by enemy forces to support their war effort. And it is also appropriate to destroy communication provided to the enemy forces in order to create confusion and immobility in the enemy. All of this involves not only the direction of force, but the gathering of intelligence to know how to direct that force. Classically, the gathering of intelligence has always included not only the disposition, location and nature of enemy forces, but an attempt to intercept commands and communications to and from enemy forces. That is exactly what’s happening in the international terrorist wiretapping described by the Senate hearings. It is a classic effort to intercept enemy communications.

No one should think that because civilians are involved in the loop that this makes the communications in any way protected. Think about enemy soldiers taking a rest in a tavern and talking to the tavern keeper or to civilian guests. Normally any military spy or civilian spy would be happy to collect whatever intelligence was available from their discussions. This is the sort of thing that’s been done for thousands of years. When those discussions take place over the airwaves, they are not only easier to intercept, but it is surprising that anyone would actually believe that they would be private during wartime. There is no reasonable expectation of privacy for a wartime communication with those who are the enemy or who abide in the region of the enemy. If I was making calls to people involved in radical Islam in Pakistan, I should be quite shocked if my telephone calls were not in some way intercepted and checked.

Simply because international communications with possible terrorists can be eavesdropped on during time of war does not mean that America has suddenly become a police state. Americans can still only be charged with crimes that are crimes under the laws of America. They can still only be tried only in American criminal courts under the rules of criminal procedure and the Constitution. They cannot be convicted with evidence that is inadmissible under the Fourth Amendment. Current government has not even undertaken measures that have been undertaken in the past such as the temporary suspension and modification of habeas corpus or the regulation of the press. Instead, these freedoms have been preserved even though they were suspended at times during previous wars. All in all, I am disappointed by the attitude of the United States Senate and the paranoia of the American left. While we all should be eager to preserve our freedoms under the Constitution, we should not be eager to distort the Constitution and attempt to turn our tripartite republic into a system involving parliamentary supremacy.

1 comment:

Anonymous said...


Tomorrow, March 7, 2006 the House of Representatives will take up the Senate changes in the PATRIOT Act.

1. National securitiy letters (administrative search warrants) will not be used with respect to libraries.

2. A process is established to allow an person to challenge requests under section 215 of the Act regarding items such as books, records and other tangible things.

3. An affected person cannot be required to submit the name of their attorney to the Federal Bureau of Investigation.

The Senate changes will be brought up under the Suspension of the Rules which requires a two-thirds vote in the House.

Kevin Holsclaw