Impeaching "Big Brother"?

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

THE AMERICAN LEFT IS TREATING THE NEWS that President Bush authorized
the National Security Agency to wiretap foreign terrorists even when
they spoke to someone currently resident in America 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 *** 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.

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