The New York Times’ Christmas gift — sorry, holiday gift — to the nation’s political dialogue was its Dec. 16 story reporting the National Security Agency intercepts of telephone conversations between terrorism suspects abroad and U.S. citizens or legal residents in the United States.
The Times didn’t bother telling its readers this practice is far from new and is entirely legal. Instead, the story’s unspoken subtext was that this was likely an illegal and certainly a very scary invasion of Americans’ rights.
Let’s put the issue very simply. The president has the power as commander in chief under the Constitution to intercept and monitor the communications of America’s enemies. Indeed, it would be a very weird interpretation of the Constitution to say the commander in chief could order U.S. forces to kill America’s enemies but not to wiretap — or, more likely these days, electronically intercept — their communications. Presidents have asserted and exercised this power repeatedly and consistently over the last quarter-century.
To be sure, federal courts have ruled the Fourth Amendment’s bar of “unreasonable” searches and seizures limits the president’s power to intercept communications without obtaining a warrant. But that doesn’t apply to foreign intercepts, as the Supreme Court made clear in a 1972 case, writing, “The instant case requires no judgment on the scope of the president’s surveillance power with respect to the activities of foreign powers, within or without this country.”
The federal courts of appeals for the 5th, 3rd, 9th and 4th Circuits, in cases decided in 1970, 1974, 1977 and 1980, took the same view. In 2002, the special federal court superintending the Foreign Intelligence Surveillance Act wrote, “The Truong court, as did all the 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 for granted that the president does have that authority and, assuming that is so, FISA could not encroach on the president’s constitutional power.”
Warrantless intercepts of the communications of foreign powers were undertaken as long ago as 1979, by the Carter administration. In 1994, Bill Clinton’s deputy attorney general, Jamie Gorelick, testified to Congress, “The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.”
In the Dec. 15 Chicago Tribune, John Schmidt, associate attorney general in the Clinton administration, laid it out cold: “President Bush’s post-September 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.”
“News stories” in the New York Times and other newspapers and many national newscasts have largely ignored this legal record. Instead, they are tinged with hysteria and a suggestion the NSA intercepts have violated fundamental freedoms.
Earlier this month, a Newsweek cover story depicted George W. Bush as living inside a bubble, isolated from the real world. Many of the news stories about the NSA intercepts show the mainstream media are in a bubble, insulating themselves and their readers and viewers from knowing applicable law and recent historical precedent, determined to undermine the Bush administration regardless of any damage to national security.
And damage there almost certainly would be were the program ended, as many Democrats and many in the mainstream media would like. Gen. Michael Hayden, former director of NSA and now deputy national intelligence director, has come forward to say, “This program has been successful in detecting and preventing attacks inside the United States.”
The Constitution, Justice Robert Jackson famously wrote, should not be interpreted in a way that makes it “a suicide pact.” The notion that terrorists’ privacy must be respected when they place a cell-phone call to someone in the United States is a form of suicide pact. The Fourth Amendment’s ban on unreasonable searches and seizures in the United States should not be stretched into a ban on interceptions of communications from America’s enemies abroad.
The mainstream media, inside their left-wing bubble, evidently think there is not much danger. They should take a trip to Ground Zero, to the September 11 memorial at the Pentagon, to Shanksville, Pa., where the heroes of United flight 93 prevented the terrorists from hitting Washington.
Michael Barone is a nationally syndicated columnist.