I Can Hear You!

There have been plenty of issues over this last year. To conclude the year, I am finishing with a post on the wiretapping controversy. The basic argument from the ACLU and others is that the direct wiretapping order was illegal. Period. Since the president did not go to get a warrant from the Foreign Intelligence Surveillance Court within 72 hours of the order, he broke the law. John Dean called it the first time a President has admitted to an impeachable offense. Representative John Lewis called for articles of impeachment to be written and Barbara Boxer took these statements "very seriously."

The only problem with this argument is that a direct presidential order is legal. As the National Center for Policy Analysis points out in the Wall Street Journal, "The allegation of Presidential law-breaking rests solely on the fact that President Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. However:

• No Administration then or since has ever conceded that the Act trumped the President's power to make exceptions to FISA if national security required it.
  
  
• FISA established a process by which certain wiretaps in the context of the Cold War could be approved; it was not a limit on what wiretaps could ever be allowed.
  
  
• In several cases, a special panel of judges heard FISA appeals and found "the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information;" and, "FISA could not encroach on the President's constitutional power."
  

The evidence is also abundant that the Administration was scrupulous in limiting the FISA exceptions, says the Journal:

• They applied only to calls involving al Qaeda suspects or those with terrorist ties.
  
• Far from being "secret," key Members of Congress were informed about them at least 12 times, says the President.
  
• The two district court judges who have presided over the FISA court since 9/11 also knew about them.
  
• These wiretaps were not used for criminal prosecution but solely to detect and deter future terrorist attacks -- which is precisely the kind of contingency for which Presidential power and responsibility is designed."
  

That should be the end of it! If wiretapping in this sense is legal, if there are no abuses of authority, and if it is only used on terror suspects, then there is absolutely no reason to have such a big controversy.

The problem with this postition on wiretapping is that it has received very little actual support or coverage. Even being a news pundit, I was unable to find the justification that the administration claimed supported the legality of wiretapping until today. Without accurate representation in the main stream media (and in the minds of some congressmen), this issue is being blown way out of proportion.

This information was first leaked to the New York Times, which ran an article on the subject in defiance of the President's express request. Now we have another leak. A leak about the leak probe investigation (say that ten times fast!) It is good that the administration is trying to take action against those who leaked such information in a time of war, but another leak leads to more obstacles.

I am sure terrorists understood that they could be listened to and took precautions against it. Now they know, and will be even harder to catch. You can't wiretap a hand written note passed hand to hand. Another negative repercussion is that the defense lawyers for captured terrorists are trying to get their clients off on a legal technicality ... the wiretaps were illegal.

In the end, we have a controversy, an impeachment threat, an increased awareness from terrorists to government information gathering, and the possibility of terrorists getting off scot-free. All this ... over something that has been firmly established to be legal since 1978. Go figure.


In a lighter vein, Happy New Year! As Nate said, "Thanks for reading!"