Today, the Washington Post editorializes against the surveillance program that came to light last week.
As part of its piece, the Post writes:
The tools of foreign intelligence are not consistent with a democratic society. Americans interact with their own government through the enforcement of law. And in those limited instances in which Americans become intelligence targets, FISA exists to make sure that the agencies are not targeting people for improper reasons but have sufficient evidence that Americans are actually operating as foreign agents.
The problem is that this law -- and the Post's thinking -- is clearly geared to a pre-terrorism age, before lives could be placed in imminent risk through a threat that recruits domestic agents to carry out its work. Part of the problem is that there isn't necessarily "probable cause" to believe that every phone number in Osama Bin Laden's cell phone belongs to a terrorist. But it would be stupid, negligent and wrong not to check it out. It's the kind of thinking like that above -- where bright-line, facile distinctions are drawn between matters "domestic" and "foreign" -- that resulted in the famous Clinton "wall" . . . and culminated in 9/11.
But although it seems to assume Administration guilt, at least The Post limits its criticism largely to policy, rather than making sweeping statements that the program was clearly illegal (hello, Russ Feingold!). Here's why the Post is right in doing so:
The Fourth Amendment, according to the Supreme Court (Lewis Powell writing) forbids "domestic security surveillances . . . conducted solely within the discretion of the executive branch." Fine. But as Powell also noted, that holding didn't apply to "the president's surveillance power with respect to the activities of foreign powers, within or without this country." (See United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297 (1972)).
In other words, the Administration couldn't conduct wireless surveillance of conversations between Tim McVeigh and Larry Nichols, but conversations between Osama bin Laden and the American Taliban in Califoria are fair game, given that the latter is acting as an agent of a foreign power.
Moreover, in enacting the Foreign Intelligence Service Act or any other law, Congress cannot -- however much it wants to -- diminish the President's Constitution-given powers to act as Commander-in-Chief of the United States. The Administration has argued before, with merit, that the President has inherent power (as Commander in Chief) to conduct wireless surveillance of foreign powers and their agents. Should Congress attempt to limit those powers, it's violating separation of powers principles. It can't limit the President's powers by statute, any more than it could by statute decide, for example, that the Supreme Court won't have original jurisdiction over any controversy between two states (another power bestowed by the Constitution).
All the self-righteous big mouths proclaiming the illegality of the President's activities had better think twice, and speak with a little more caution. It's far from clear that anything wrong has gone on from a legal standpoint -- and certainly not from a policy perspective.
And as for a political matter, if the choice is between protecting Americans acting as Al Qaeda agents and protecting the rest of us from them, well, that's an easy choice, at least for the sensible majority in this country.
Cross posted at .