“Warrantless Searches and the Parameters of Presidential War Powers,” by Mark Safranski, ZenPundit, 21 December 2005, http://zenpundit.blogspot.com/2005/12/warrantless-searches-and-parameters-of.html.
“Hitler on Line One: There’s a Long History of Intercepting Foreign Communications, and Some of It May Have Been Legal,” by Robert X. Cringely, I, Cringely, 19 January 2006, http://www.pbs.org/cringely/pulpit/pulpit20060119.html (from Slashdot).
“Google shares fall nearly 8 percent,” by Eric Auchard, Reuters, 20 January 2006, http://today.reuters.com/investing/financeArticle.aspx?type=hotStocksNews&storyID=2006-01-20T194115Z_01_N20177562_RTRUKOC_0_US-GOOGLE-STOCKS.xml (from Slashdot).
In spite of the Justice Department, we may still win the Global War on Terrorism. Somehow.
Therefore, Cringley’s explanation of President Bush’s anti-terror espionage is important.
After giving a technical analysis of different methods of eavesdropping, and saying that he doesn’t know whether to be outraged or bored, Cringley notes
Given that this is all about National Security, we’ll probably never know the full answer. Even if the proper research is conducted and answers obtained, they won’t be shared with you or me. But here’s a hint from a lawyer who used to be in charge of exactly these compliance issues for one of the largest RBOCs: “While it is true the FISA court approves nearly all applications submitted to it, this is due primarily to the close vetting the DOJ attorneys give to applications before they are submitted to the court. In fact, the FISA appellate court noted that the DOJ standards had been higher than the statute required. I am unaware that the court has ‘retroactively’ approved any electronic surveillance that was not conducted in an emergency situation. There are four emergency situations enumerated in the statute. Even in an emergency, the government has to apply for approval of what they have already started or in some case finished and these applications have to meet the same strict standards as any other application.”
So the probable answer is that the several hundred NSA communication intercepts wouldn’t have qualified for submission by the DoJ to the FISA court, and some of those might not have qualified for FISA court orders even if they had been submitted. It looks like the difference between using a rifle or a shotgun, with the Bush Administration clearly preferring the shotgun approach. Only time will tell, though, if what they are doing is legal.
The criticism of the wiretapping is mostly legalistic anti-Bushism wrapped up in a Constitution dress. The precise, technical method that we get information on al Qaeda doesn’t matter. That we get it matters. We face a huge problem, of both terrorists and terrorist-sympathizers, and the dynamic wiretaps are a way to help fix it.
These concerns aren’t academic. Important American institutions have been subverted by our enemies. The Communist subversion of many American institutions is well known. But even the Nazis made real headway
The computer monitoring of cell phone conversations pales in both scale and significance. One fun fact from that monitoring: The CEO of International Telephone & Telegraph (ITT) reportedly spoke with Adolf Hitler on the phone from New York City every week of the war. According to the book The Sovereign State of ITT, the call was placed from New York to South America, and then used a cable from South America to Berlin. Key companies that maintained the German telephone network were ITT subsidiaries at that time, and communications were obviously of strategic importance for Germany; thus Hitler needed to speak with the CEO every week. ITT never stopped running the German phones during the war and were evidently allowed to continue doing so to gather just this sort of intelligence (that’s me putting a positive spin on a disturbingly ambiguous relationship). So information technology’s ability to eliminate borders in warfare is nothing new, even though it seemed to take the New York Times by surprise!
We can lose this Global War on Terrorism. Terrorists can blend into our society. We must know where potential terrorists and collaborators are, and what they are doing, even when they are inside our borders.
Eavesdropping is important. It can be vital to national interest. Which is why stories like Justice Department strong-arming of Google are so alarming:
Another issue is the brewing controversy between Google and the U.S. Justice Department. Google is resisting a request by the government for Web search data to help the United States make its case in support of a federal online pornography law.
“There are potentially concerns that Google could be in the cross-hairs of the Justice Department,” Kessler said.
Instead, I will quickly quote Mark Safranski of ZenPundit
The American people want to hear that warrantless surveillance is an action the Federal government takes only in extremis to prevent acts of catastrophic terrorism and to prosecute the war against al Qaida- any appearance of lazy and unjustifiable” fishing expeditions” will – correctly in my view- raise a political firestorm. Absent the need to protect exceptionally delicate sources or methods or stop an imminent disaster, going to the FISA court should be the first choice because of the political and moral dividends of being able to point to a systemic check and balance on such an awesome power.
I disagreed with Mark on whether or not warrantless searches hurt the will of the American people, but the essential point is that it is vital not to undermine our war effort by disillusioning the American people.
The distinction between spying on terrorists and spying on civilians is critical — court order or not. As Attorney General John Ashcroft once said, we need to run interference against the terrorists — make every little thing harder for them. But when the government seeks expanded powers both against terrorists and against Americans, the State runs interference on itself — makes every little thing that much morally harder on it and the American people.
George Bush is right to spy on terrorists. The American people will rally behind any leader who fights terrorists.
But the Justice Department is wrong to try to spy on the search records American civilians. The American people will reject any leader who once to make them live morally — who wants to socialize virtue.
We can not risk rejection of our leadership because its Justice Department insists on carrying out a virtue crusade. States should avoid criminalizing as much as possible, because the more friction we generate nickle-and-dimeing social policy, the more heat we get in trying to stop a threat to our civilization.
Win the Global War on Terrorism. Spy to stop terrorism. Not to spread “virtue.”