Frankly, I’d like to know who the terrorists are talking to
It has been noted that the “warrantless search” executive order signed by President Clinton involves “certifications” to be determined by the attorney general to ensure these authorized searches are performed only on “agents of a foreign power” and not American citizens. However, a warrantless search on an American citizen did occur under the Clinton Administration during the investigation of former CIA analyst Aldrich Ames. In her testimony regarding this incident before congress, former Clinton Deputy Attorney General Jamie Gorelick defended the practice. “The Department of Justice believes, and case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and the president may, as he has done, delegate this authority to the attorney general,” she said.
Former Associate Attorney General under President Clinton, John Schmidt, recently wrote, “President Bush’s post-Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents. Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.”
Recently, the Foreign Intelligence Surveillance Court itself opined that the court has long held “… that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” The court also wrote, “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.”
The president is empowered by Article II of the constitution as commander in chief, and although a formal declaration of war has not been issued, clearly we are in a war on terror, and Congress, in a de facto declaration of war, did authorize the president to “use all necessary and appropriate force” to prevent those responsible for 9-11 from carrying out any further attacks. The president cannot issue directives for warrantless searches in domestic or criminal cases, but when it comes to foreign intelligence and national security, he has broad constitutional powers, especially in a time of war.
So why did the president not seek FISA court approval of the warrantless searches? Rather than being the “rubber stamp” as it has been described, it seems the process for application and approval is more cumbersome than we are led to believe. Remember the now-famous “Rowley Memo?” FBI agent Coleen Rowley was seeking a warrant from the FISA court to secure information from the computer of “the 20th hijacker” Zacarias Moussaoui. In testimony before Congress, Legal Times reported, “Rowley depicted the legal mechanism for securing warrants under the Foreign Intelligence Surveillance Act, or FISA, as burdensome and restrictive, a virtual roadblock to effective law enforcement.”
In 2004 the 9/11 Commission briefed the press on continuing efforts to streamline the process and sadly reported that significant problems remain, “Many agents in the field told us that although there is now less hesitancy in seeking electronic approval for electronic surveillance under FISA, the application process nonetheless continues to be long and slow.”
We understand, especially in the post 9/11 world, that in the business of gathering intelligence speed is of the essence. Ms. Rowley rightly sensed that she was onto something, and in an effort to shortcut the legal maze presented by her somewhat inept FBI superiors and the FISA court, went so far as to suggest that Moussaoui and his computer be taken to France where the contents could have been inspected (this probably would have indeed happened, but for that fact that the 9/11 attack took place very shortly thereafter). A trip to France might possibly have saved 3,000 innocents, but it also would have raised howls of protest from the left wingers who have decried the policy of rendition, and who no doubt would have blanched at the prospect of violating Moussaoui’s “civil rights.” In a classic case of “closing the barn door after the horse has already left,” as the twin towers and the Pentagon lay in smoldering rubble, the FISA court granted the warrant to search Moussaoui’s computer.
The ultimate deprivation of one’s civil rights occurs when they are slaughtered just for going to work one morning, like the 3,000 of our fellow citizens who were deprived of their “life, liberty and the pursuit of happiness” simultaneously. The very fact that we have not been attacked on our soil since 9/11 is testament to the vigorous efforts of this administration to protect our homeland, but don’t think for one minute that al-Qaida has unilaterally disengaged. There will never be a cease-fire or armistice, and they are still busily plotting and planning to kill as many more of us as they possibly can. Personally, I think it is a good idea to use this very narrowly applied program to target “known al-Qaida members or their associates” by electronic surveillance; and if they happen to be talking to an American citizen then I believe we should find out who, and why, and what they’re saying … and do it in a hurry, please! This widely shared sentiment is expressed in a Rasmussen Poll which shows that 64 percent of Americans believe the National Security Agency should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States; the survey found that just 23 percent disagree. The leadership of both parties in Congress were apparently in agreement as well. They were regularly briefed on this surveillance practice, yet none expressed any concern, publicly or privately, for years, until the New York Times splashed the story (unlike the Valerie Plame so-called identity leak, this leak investigation will actually deal with National Security concerns … and I can’t wait to find out who the leaker was!)
President Bush is predictably a victim of selective outrage. We heard no weeping or wailing from the left when Bill Clinton used his constitutional authority for a warrantless search on Aldrich Ames, an American citizen and an employee of the federal government. I, for one, think President Clinton did the right thing in the Ames case. Ames was single-handedly responsible for one of the most devastating breaches of national security in our history, and although Ames was responsible for the deaths of numerous CIA contacts abroad, he didn’t begin to approach to the carnage of 9-11. If there had been a subsequent attack on our soil following 9-11 and it was determined that the administration had not done absolutely EVERYTHING in its power to prevent it, we would again be hearing cries for impeachment … but for different reason.
– Evan Williams is a South Lake Tahoe resident and business owner.
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