Andrew McCarthy has a brilliant piece in National Review Online on the NSA wiretapping “scandal”. He puts the real crux of this matter plainly:
We are either at war or we are not. If we are, the president of the United States, whom the Constitution makes the commander-in-chief of our military forces, is empowered to conduct the war — meaning he has unreviewable authority to employ all of the essential incidents of war fighting.
Not some of them. All of them. Including eavesdropping on potential enemy communications. That eavesdropping — whether you wish to refer to it by the loaded “spying” or go more high-tech with “electronic surveillance” or “signals intelligence” — is as much an incident of warfare as choosing which targets to bomb, which hills to capture, and which enemies to detain…
Al Qaeda is an international terrorist network. We cannot defeat it by conquering territory. It has none. We cannot round up its citizens. Its allegiance is to an ideology that makes nationality irrelevant. To defeat it and defend ourselves, we can only acquire intelligence — intercept its communications and thwart its plans. Nothing else will do.
Al Qaeda seeks above all else to strike the United States — yet again — domestically. Nothing — nothing — could be worse for our nation and for the civil liberties of all Americans than the terrorists’ success in that regard. For those obvious reasons, no communications are more important to capture than those which cross our borders. Al Qaeda cannot accomplish its ne plus ultra, massive attacks against our domestic population centers, unless it communicates with people here. If someone from al Qaeda is using a phone to order a pizza, we want to know that — probable cause or not.
It is precisely that reason why the civil rights absolutists are not winning this argument. We’re at war with any enemy that does not distinguish between civilians and combatants, blends in with our own civilian population, and has the stated goal of attacking us with nuclear, chemical, and biological weapons. The Democrats keep trying to systematically play down the threat of terrorism - a threat that is very much real and very much prescient. The 9/11 Commission Report makes it clear that the FISA system was not adequate before September 11, 2001, and remains too slow and too cumbersome to deal with the technologies of the 21st Century. The most critical element in the fight against al-Qaeda is actionable intelligence, and the only way to gather that intelligence is to have a system that can follow the trail even when an al-Qaeda agent is using disposable pre-paid cellphones and calling from within the borders of the US.
The arguments about the “imperial Presidency” and the “expansion of executive power” are equally based on a willful misunderstanding of the situation. The Executive is the Commander in Chief of the Armed Forces - he (or she) has the Constitutionally-mandated authority to lead our armed forces in acts of war. Congress gave the President statutory authority to pursue al-Qaeda, and that includes the gathering of intelligence.
In fact, if Congress truly felt that this program was a horrendous threat to our civil liberties, they could take action. As McCarthy explains:
A blank check for the president? That is preposterous rhetoric. The commander-in-chief power includes the incidents of warfare. Nothing else. The president cannot seize the steel mills. He cannot suspend habeas corpus. He cannot close the banks, raise taxes, or conscript minors. He is no king. Indeed, if we are to talk about “the king” — as in having no clothes — our eyes should be cast on Capitol Hill.
From the hysteria that abounds, one would think that if FISA was not merely ignored but repealed, we would be living in a dictatorship, with All the President’s Men snooping into every phone call, every library, and every bedroom. It is nonsense. Congress retains the power of the purse. Nothing prevents it, tomorrow, from passing a law that denies all funding for any domestic surveillance undertaken by the NSA or any other executive branch agency.
The president could do nothing but veto such a bill. But if, as leading Democrats and civil-liberties extremists maintain, the NSA program is truly one of the most outrageous, execrable, impeachable acts ever committed in recorded history, that veto would easily be overridden.
So why doesn’t Congress just do it. Why doesn’t it, literally, put its money where many of its mouths are? Why don’t the people’s representatives bring to heel this renegade, above-the-law president and his blank check? Because they’d lose, decisively and embarrassingly, that’s why.
Because they’d have to take an accountable position on life-and-death. Because such a vote, in the middle of a war in which millions of American lives are at stake, would say, unambiguously, that they actually believe the government should not monitor enemy communications unless a federal judge — someone no one voted for and voters cannot remove — decides in his infinite wisdom that there is probable cause. It’s so much easier to carp for a scandal-happy media about “the privacy rights of ordinary Americans,” as if that were really the issue.
McCarthy is right – if Congress really wanted to end this program, they have the power of the purse. They can cut off all funding for this program just as they had done previously with the Total Information Awareness (TIA) program. Despite all the heated rhetoric, so far there has been no Congressional push to cut the funding for this program. McCarthy is right, the Democrats were nailed for their intransigence in 2002 on the Homeland Security bill, and the last thing any Democratic politician wants to do is explain to their constituency why they believe that we should have sat around waiting for FISA to issue a warrant if we’d learned about September 11 a week prior to the event. Treating Osama bin Laden better than we treat Tony Soprano simply doesn’t make sense when one honestly examines the reality of the threat we face.
It’s so much easier to play the role of the aggrieved defenders of “civil rights” than it is to actually take action. It’s so much easier to invent obviously outlandish hypotheticals than it is to have an honest debate about the issues involved. It’s so much easier to mouth tired platitudes and mangled quotations about “liberty” and “security” than to consider that if there’s an attack on an American city with WMDs our civil rights will start a far more precipitous decline - not to mention the thousands or even millions of people who would lose their lives.
The essential problem here is the essential problem of our age - everything has become hyper-politicized as the single-minded fixation with George W. Bush poisons all political debate. This is less about the competing interests of security versus privacy and the power of the Executive in wartime than it is about being another partisan rallying cry for the left to wave around and get more ACLU donors to pony up more cash.
At the end of the day, we remain at war with an enemy who combines ruthlessness and technology to form a greater threat than this country has ever faced. Nazi Germany couldn’t destroy an American city. The Soviet Union was, for the most part, a rational actor constrained by the doctrines of Mutually Assured Destruction. Al-Qaeda has already demonstrated it has the capability of attacking the United States itself and is hardly a rational actor - they see the west as jahiliyyah and as long as we do not submit to their view of Islamic law, we are to be destroyed. We are not dealing with conventional threats, and the idea that if we’d found out that a group of people on expired student visas were plotting something on September 7, that we’d have to end surveillance on September 10 while FISA processes the paperwork is not a tenable position in dealing with this threat.
For those whose partisanship makes them see George W. Bush as a bigger threat than Osama bin Laden, that is of little concern. But for Serious America, the right to “privacy” in regards to international communications reasonably suspected to involve terrorism does not in any way outrank the right for people to be free of terrorist attack.