Secondary Screening: It's Not The Crime; It's the Rationale

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December 17, 2005 | It's Not The Crime; It's the Rationale

President Bush admitted today that he circumvented United States law and repeatedly ordered the National Security Agency to wiretap suspected Al Qaeda operatives in the United States. His rationale for the order was that the wiretaps needed to be installed instantly, and he said that the New York Times story that revealed his illegal order damaged national security.

The wiretaps themselves should not be in question. No one, besides Ramsey Clark and his ANSWER minions, would argue that phone numbers and email addresses found on the computer of a captured Al Qaeda member should not be wiretapped. Immediately.

In fact, that's what the law allows.

The government has the power to start such wiretaps immediately, so long as they promptly notify a special court judge and send paperwork to that court with 3 days. All they need to prove is probable cause that the person, whether they be a foreigner or an American citizen, is likely a member of a terrorist group or a foreign agent. That court is highly deferential, and just last year, authorized more than 1,700 wiretaps.

That's why this story is not about the wiretaps, so long as one presumes the administration is working in good faith and not using the wiretaps to monitor American citizens exercising their legal rights. Despite this week's story about the Pentagon monitoring anti-war Quakers, I'm still inclined to believe that the targets are legitimate.

The story is about executive privilege and this administration's belief that its anti-terrorism actions cannot not be curtailed by Congress or the Courts.

Bush is at best misleading the country and at worst, lying, when he argued today that this story undermines national security.

Every gunrunner, would-be terrorist, two-dinar dictator and money launderer knows that the NSA has awesome capabilities and that their emails and phones can and will be tapped.

As Julian Sanchez points out today, no terrorist could possibly care how the wiretap was ordered:

So what kind of plausible difference to our national security could it make if terror suspects who know they might be targeted for eavesdropping with a warrant learn they might be targeted without one?

Bush ordered the wiretaps in violation of the wiretap laws, which explicitly say that any wiretapping in the United States must go through the courts, whether those be traditional criminal wiretaps or the ones designed for spies and terrorists.

His rationale is that he has the power to ignore and supersede the law by fiat, since Congress authorized the use of force against those who committed or abetted the September 11 bombings.

Bush says that the policy is reviewed by Justice Department and NSA lawyers and officials. That may be true, but that's not what the law says should happen. Those are just rules his administration made up.

In fact, under this interpretation of his power -- unlimited, unreviewable power in regards to fighting terrorism --, the McCain amendment prohibiting torture has no meaning. Bush would be above that law. In fact, under this conception of the presidency, there's no need to renew the Patriot Act for terrorism investigations, since he can just issue the regulations himself.

But there's a price to be paid for writing your own rules in order to sidestep paperwork after the fact and the slightest of judicial oversight.

The court that authorizes wiretaps told the Administration that information found in these illegal wiretaps can't be used to get new, legal wiretaps.

Traditionally, counter-terrorism operatives who capture the name and phone number of a yet-unknown accomplice can then go back to the court and use that information to build a chain of legal wiretaps.

But with these extra-legal wiretaps, those agents would not be allowed to do so, because the secret FISA court says that illegal evidence can't be used, according to the New York Times. But the administration is willing to cause problems down the investigative path and break the law SIMPLY to prove the point that it is above filling out forms and having to prove to sympathetic judges that they aren't breaking the law.

That arrogant flouting of the law and the basic tenets of our democracy -- not the leaks from concerned government officials -- are what is dangerous in this story.

For more on how the secrecy argument being floated by the President and the right half of the blogosphere is simply, and historically, wrong, check Adam Shostack's post, Government Secrecy and Wiretaps.

Update: Also, seems that Noah and I are having the same thoughts, but on opposite coasts...

Posted by Ryan Singel at December 17, 2005 05:04 PM

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Tracked on December 18, 2005 06:48 AM