The Ethics of Spying, Part IV

Previous:
The necessity of spying: The Ethics of Spying, Part I
The "sleight of hand" behind the phony scandal: The Ethics of Spying, Part II
The security problems inherent with liberty: The Ethics of Spying, Part III

Lest anyone continue to question the legality of the warrantless wiretaps, perspective is needed. From the Wall Street Journal:

The Bush Administration’s use of warrantless wiretaps in the war on terrorism continues to generate controversy, and Congress is planning hearings. Some of the loopier elements of the Democratic Party have even suggested the wiretaps are grounds for impeachment. But the more we learn about the practice, the clearer it is that the White House has been right to employ and defend it.

The issue is not about circumventing normal civilian Constitutional protections, after all. The debate concerns surveillance for military purposes during wartime. No one would suggest the President must get a warrant to listen to terrorist communications on the battlefield in Iraq or Afghanistan. But what the critics are really insisting on here is that the President get a warrant the minute a terrorist communicates with an associate who may be inside in the U.S. That’s a loophole only a terrorist could love.

It also represents the breakdown in the previous, dare I call it Clintonian, response to terrorism through showy but limited "police action," vapid statesmanship and empty or bankrupt UN threats. It levels the playing field for terrorists by creating a virtual maze of populace that they gain advantage by blending in with, either on their territory or on ours. After all, we're dealing with criminals, not enemies, goes the thinking.

And, lest anyone think this issue originated with the Bush admin after September 11, the Journal dispels that erroneous notion:

To the extent the President's critics are motivated by anything other than partisanship, their confusion seems to involve a 1978 law called the Foreign Intelligence Surveillance Act. FISA provides a mechanism by which the executive can conduct warrant-approved surveillance under certain circumstances. But FISA covers only a limited number of intelligence-gathering scenarios. And no Administration--Democrat or Republican--has recognized FISA as a binding limit on executive power.

Jimmy Carter's Attorney General, Griffin Bell, emphasized when FISA passed that the law "does not take away the power of the President under the Constitution." And in the 1980 case of United States v. Truong, the Carter Administration successfully argued the government's authority to have conducted entirely domestic, warrantless wiretaps of a U.S. citizen and a Vietnamese citizen who had been passing intelligence to the North Vietnamese during the 1970s Paris peace talks.

In 1994, Deputy Attorney General Jamie Gorelick also asserted an "inherent authority" not just to warrantless electronic surveillance but to "warrantless physical searches," too. The close associate of Hillary Rodham Clinton told Congress that much intelligence gathering couldn't be conducted within the limits placed on normal criminal investigations--even if you wanted to for the sake of appearances. For example, she added, "it is usually impossible to describe the object of the search in advance with sufficient detail to satisfy the requirements of the criminal law."

Finally, it is worth letting Jeff G. (to whom I'm indebted for this material and the above links) reiterate one of my early points:

[T]here has been not a single example offered to date that such FISA warrants weren’t in fact applied for in those situations requiring them (and in fact, Gen Hayden and the President have both said that in such apposite cases, FISA warrants WERE applied for. It is only in the hypothetical bad-faithed situations conjured by the program’s critics and civil libertarian absolutists that any law was “obviously” broken and any constitutional protection “obviously” trampled).

The bottom line is that Bush Derangement Syndrome victims see this as their chance to bring Bush down. They don't care how ignorant and wrongheaded their case is, or what/who else goes down with him. And they won't win.