It’s five o’clock on a Sunday morning, when journalist Christopher Hitchens is unlikely to be in his Washington, D.C., office. The phone rings, and the voice mail picks up.
“Hello, Hitch?” says the caller. “You may not remember me, but this is Mohammed—one of your sources. I have a big story for you. Right now, I am in a private jet flying over the Caribbean. My destination is Miami. My cargo is a very large bomb. We will be arriving soon. You will be able to use this message to confirm that Osama bin Laden sent me. Hope you appreciate the scoop.”
Hitchens doesn’t get the message in time—but the National Security Agency does.
It is intercepted as part of the NSA program of warrantless eavesdropping on suspected al Qaeda communications in and out of the U.S. Florida-based fighter jets intercept the plane—which tries to evade them. The President orders the terrorists and their bomb blown from the sky 100 miles offshore.
This scenario, of course, is fiction. But it is a good test of the basic principles—and political attitudes—involved in the opinion issued last week by Federal Judge Anna Diggs Taylor, who ruled that the NSA program is unconstitutional. According to Taylor and Christopher Hitchens—a plaintiff in the case—the program violates Hitchens’ 1st-Amendment right to free speech and 4th-Amendment right to be free from unreasonable searches.
“Because of the nature of his communications with people in the Middle East, the identities of those with whom he communicates, and the subject matter of his online research,” said the ACLU complaint in the case, “Mr. Hitchens has a well-founded belief that his communications are being intercepted by the NSA under the program. Mr. Hitchens believes that free and open communication with his sources is an essential element of his work as a journalist.”
In a nutshell, Judge Taylor claimed that under our Constitution, Hitchens’ right to never have his overseas telephone calls intercepted without a warrant trumps the right of Americans not to be blown to smithereens.
The Constitution, however, says no such thing.
When the Framers debated the war power, they made plain that the language of Article 1, Section 8, which authorizes Congress “to declare war” was intended to prevent the President from initiating offensive military action without prior congressional approval. At the same time, according to the notes of the Constitutional Convention, they intended to leave “to the Executive the power to repel sudden attacks.”
To repel sudden attacks, the Executive needs to detect sudden attacks. That means he needs to spy on those who might attack us. With modern technology, that means he might, say, point radars off our shores to track incoming planes—a practice no one seriously questions. But according to Judge Taylor’s logic, the President cannot constitutionally eavesdrop on telephone calls placed into the U.S. from suspicious, incoming planes unless he gets permission from a judge first.
The truth is, Democratic Presidents long before Bush conducted warrantless electronic surveillance for national security reasons—and every time the issue was reviewed by a federal appellate court, the court ruled for the President.
Before World War II, President Roosevelt ordered his attorney general to tell federal investigators that “they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities.” After World War II, Truman reauthorized the program.
In the 1973 case of U.S. v. Brown, the U.S. Court of Appeals for the 5th Circuit concluded “that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence.”
In the 1980 case of U.S. v. Truong, the U.S. Court of Appeals for the 4th Circuit affirmed the Carter Administration’s argument that “the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.”
In 2002, the U.S. Foreign Intelligence Surveillance Court of Review said: “The Truong court, as did all other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information…. We take it for granted that the President does have that authority.”
Nonetheless, when the NSA intercept program was revealed, former Vice President Al Gore called for a special counsel to investigate Bush. Sen. Russell Feingold (D.-Wis.) called for Bush to be censured. Sen. Barbara Boxer (D.-Calif.) cited former Nixon counsel John Dean’s claim that Bush had committed an “impeachable offense.”
Last week, Sen. John Kerry (D.-Mass.), who may run for President again, said Judge Taylor’s decision proved “no one is above the law.” House Minority Leader Nancy Pelosi (D.-Calif.), who will become Speaker if the Democrats win a House majority, called the decision “a repudiation of Mr. Bush’s dangerous assertion that he has unlimited authority to conduct wiretapping activities in the United States.” Senate Minority Leader Harry Reid (D.-Nev.), who would run a Democratic Senate, said Taylor’s decision “is the latest example of how the Bush Administration has jeopardized our efforts in the war on terror.”
Judge Taylor, a Carter nominee who was touted as a potential Supreme Court candidate during the Clinton years, has given the nation a timely reminder of the sort of judges who would be nominated—and how the nation would be at the mercy of terrorists—if Democrats return to power.