It’s the ends, not the means | TahoeDailyTribune.com
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It’s the ends, not the means

Fred Kalhammer

A recent interesting and well-written Guest View column (“Frankly, I’d like to know who the terrorists are talking to,” Jan. 11) defended the Bush Administration’s actions in ordering intercepts by the National Security Agency (NSA) of international communications between American citizens and persons overseas, either of whom may be related to terrorist organizations, in order to detect, warn and defend against future terrorist attacks. From the outset, let’s be clear that such intercepts are necessary in order to safeguard our country. That said, it is not helpful in achieving a balanced view of this issue when the very serious constitutional (separation-of powers and privacy) issues surrounding this once-secret program are given short shrift.

Nor is it particularly useful, in this context, to compare NSA’s vital eavesdropping activities to President Clinton’s authorizing the FBI to wiretap the conversations of a CIA employee (Aldrich Ames) suspected, and ultimately convicted, of the crime of treason. Why? Because no one with inside knowledge of the Ames case would have gone to a reporter with a complaint about such a specific eavesdropping target, and no one did. In sharp contrast, New York Times reporter James Risen has stated in several televised interviews that his source for the NSA wiretap story was not one, but several, current and former government officials with knowledge of the secret program who expressed to him their deep misgivings about its legality/constitutionality.

Critics of President Bush’s actions point out that the Foreign Intelligence Surveillance Act (FISA) contains language that limits the conduct of domestic surveillance activities exclusively to the procedures specified by Congress under that and another criminal statute not directly relevant to this discussion. Despite many references to FISA in the Guest View column, this key “exclusivity” provision was somehow overlooked. Moreover, it is important to point out that FISA was enacted in 1978 in order to prevent a repetition of the many serious wiretapping abuses by the executive branch that had taken place before its enactment. And it is abuses such as those that took place at Abu Ghraib, Guantanamo, and the “renditions” (kidnappings) of terrorist suspects from foreign countries (Europe) to places like Egypt, Saudi Arabia, Afghanistan and Pakistan, where some have alleged they were tortured, that have given rise to fears in many quarters about the Administration’s respect for the constitutional rights of its own citizens, not to mention the human rights of those suspected of terrorism. Furthermore, FISA’s authorities were amended and actually expanded with the passage of the USA Patriot Act after the attacks of 9/11. Thus, it is clear that Congress intended FISA to regulate domestic electronic surveillance activities even in the state of undeclared war in which the United States currently finds itself.

In his defense, the President relies on his assertions of constitutional authority as Commander-in-Chief and Congressional resolutions authorizing the use of force against the likes of Al Qaeda and the Taliban. However, a just-published (Jan. 1) study by the bipartisan Congressional Research Service concludes that “… the Supreme Court has stated that the Congress does indeed have the power to regulate domestic surveillance …” Furthermore, “… the Administration’s legal justification … does not seem to be as well-grounded as the tenor of [its arguments] suggests.” In other words, the administration is on very shaky ground in this matter. As a former Supreme Court justice noted in another case (Youngstown Sheet & Tube Co. vs. Sawyer, 1952) regarding the extent of presidential power: “When a President takes measures incompatible with the express or implied will of Congress, his power is at the lowest ebb, for then he can rely only on his own constitutional power minus any constitutional power of Congress over the matter.”

In summary, what is at issue here is not whether the secret surveillance program should have been undertaken, but how this was to be accomplished in order to ensure BOTH the security of the United States AND the constitutional rights of American citizens. Clearly the author of the Jan. 11 column is correct in stating that those implementing the eavesdropping program need to feel that they are not being hampered in their efforts by time-consuming procedures and unnecessary red tape. But they also need to feel that they are acting within the law and the Constitution. Thus, if FISA procedures were found to lack the necessary agility, then any such shortcomings should have been addressed and resolved by the FISA Court and the Department of Justice when the secret eavesdropping program came into being. Nor is there any reason why this cannot be done now. Instead, the program was implemented on the basis of what appear to be after-the-fact rationalizations whose net effect is to circumvent the clear intent of Congress. Nor has the administration shown any signs that it intends to modify its modus operandi. As a result, not only has an essential clandestine surveillance effort been revealed to our enemies, but the nation is now faced with a bitter public dispute between the executive and legislative branches that will no doubt require the intervention of the Supreme Court, which has yet to rule on a case of this sort, in order to achieve resolution.

– Fred Kalhammer is a Stateline resident and retired Foreign Service Officer.


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