Tuesday, December 20, 2005


I don't remember that much about exactly why they revealed it, but the Washington Post certainly did the IslamoTerrorists a favor when it revealed back in 1998 that we could listen in to Osama Bin Laden's cell phone. But the damage it did cannot be compared to the damage the New York Times did when it suddenly ran a story it had withheld running for over a year regarding NSA wiretaps of AlQaeda communication. I don't know whether they did it just to promote a book the story's author has coming out next year, or whether they did it to disrupt the reauthorization of the Patriot Act, but I wish they had given some thought to a big hole in the ground in lower Manhattan where two buildings used to stand, and where 3,000 people used to work.

Were the intercepts legal? I am sure that will come out over the next few months. But one thing is certain, they certainly were doing a good job. We have not been hit since 9/11 on our land, while there have been many IslamoTerrorist attacks in Europe and Asia. And we certainly have uncovered a number of Al Qaeda cells here in the United States. If the intercepts were not legal, I feel sure the Congress will make any necessary changes to the law to make them legal, but will those new laws be effective? Has the NYT now told the IslamoTerrorists what we have been doing, and will they not change their communication procedures to find some other way of communicating with their cells?

As an editorial in the WSJ indicated:

The allegation of Presidential law-breaking rests solely on the fact that Mr. Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. But no Administration then or since has ever conceded that that Act trumped a 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, not a limit on what wiretaps could ever be allowed.
If the only tool you have is a hammer, everything begins to look like a nail. FISA is certainly one tool he could have used, but if they have just captured a cell phone in Afganistan or Pakistan, and they see several US numbers, which may well be AlQaeda cells in the US, will that be enough "Probable Cause" to convince a FISA court to let you tap those cells to find out? As William Kristol and Gary Schmitt pointed out in WaPo:
FISA requires the attorney general to convince the panel that there is "probable cause to believe" that the target of the surveillance is an agent of a foreign power or a terrorist. Yet where is the evidence to support such a finding? Who knows why the person seized in Pakistan was calling these people? Even terrorists make innocent calls and have relationships with folks who are not themselves terrorists.

The difficulty with FISA is the standard it imposes for obtaining a warrant aimed at a "U.S. person" -- a U.S. citizen or a legal alien: The standard suggests that, for all practical purposes, the Justice Department must already have in hand evidence that someone is a problem before they seek a warrant.
Civil Libertarians would say if all you have is a phone number, that is not enough proof the number belongs to a bad person. Maybe it is just the number for a local Pizza Takeout. I doubt very many Pizza Takeout stores here in the US deliver to Pakistan, but what does it hurt if the listen in the next time someone from overseas calls that number, or someone from that number calls overseas? As far as I know, they are not going to listen in the next time you call that number to order a Pepperoni with extra cheese, at least without presenting evidence to some court that the Pizza store may be involved with delivering more that Pizza. As John Hinderaker at Power Line said:
Under the circumstances we face in dealing with the terrorist threat, is it unreasonable--the Constitutional standard--to begin immediately intercepting calls being made to a captured terrorist cell phone, whether those calls originate in the U.S. or another country? Of course not.
And as Hugh Hewitt pointed out:
Micelle Malkin, after listing a long set of links to the great number of people who have argued that the president has the authority to order surveillance of foreign powers in communication with American citizens:
Now, go back and look carefully through the Times article. The reporters who have been so assiduously working on the story for at least a year couldn't find a single, non-anonymous expert in national security and the law to come up with the kind of informed analysis that took legal and counterterrorism bloggers three days to research and post.

How pathetic is that?
There are those who take a different, thopugh I think wrong, view, and the paper's job is to present both sets of views. (In my first of five posts on the subject, I pointed readers to a blog that was insisting on the program's illegality.) The refusal to do so in a comprehensive fashion is the core disability in most of left-wing MSM, the reason why the collective reputation of the old, elite media has cratered, why subscription rates fall and fall again, and why advertisers are increasingly turning to new media to find the huge nad growing audience that simply won't touch the usual suspects.

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