Hold the Line

Editorial of The New York Sun
December 19, 2005

Feature the new line of political attack the left is launching against the White House. It is criticizing the Bush administration for authorizing the government to listen in on telephone and email conversations between America and places such as Iran, Saudi Arabia, and Syria. And the Democratic Party, in the latest evidence of the bubble-like separation from reality in which the party lives, is working itself into a lather from which it is going to take weeks to recover, if it can recover at all.

Rep. Charles Rangel yesterday sent out a press release headlined, "Rangel Condemns Spying on U.S. Residents." He accused the president of apparently choosing to ignore the Foreign Intelligence Surveillance Act of 1978. Senator Feingold called on the Bush administration "to stop this program immediately." The Democratic leader, Senator Reid, and his House counterpart, Nancy Pelosi, also expressed concern.

Reasonable people may differ over the correct place to draw the line between civil liberties and national security in wartime, but this strikes us as a pretty clear-cut case. The Fourth Amendment states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

At issue is whether the listening in on overseas phone conversations is, in a time of war, "unreasonable." A person is now subject to a warrantless search when boarding an airplane, entering the New York subway system, or even entering the building that houses the office of the New York Civil Liberties Union. Why should an international phone call be inviolate?

Beyond the Fourth Amendment, the law that is said to restrict the Bush administration's activities is the Foreign Intelligence Surveillance Act of 1978. But, contrary to what you may read in some other newspapers, that law does not require that all such surveillance be authorized by a court. The law provides at least two special exceptions to the requirement of a court order. As FISA has been integrated into Title 50 of the U.S. Code, Chapter 36, Subchapter I, Section 1802, one such provision is helpfully headed, "Electronic surveillance authorization without court order."

This "without court order" was so clear that even President Carter, a Democrat not known for his vigilance in the war on terror, issued an executive order on May 23, 1979, stating, "Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order." He said, "without a court order."

Now, Section 1802 does impose some conditions, including that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." But the law defines "United States person" somewhat narrowly, so that it would not include illegal aliens or, arguably, those who fraudulently obtained legal status.

And if Section 1802 isn't enough, regard section 1811 of the same subchapter of the United States Code, "Authorization during time of war." It states, "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." Again, mark the phrase, "without a court order."

It certainly is the president's view, and ours, that Congress's declarations following September 11 formalized the state of war that was brought to us by our enemies. It will no doubt be debated whether the 15-day period is renewable. It is clear, though, that under the definitions included in the Act, "Foreign intelligence information" may include information concerning a United States person that is necessary not only to "the national defense or the security of the United States," but even merely to "the conduct of the foreign affairs of the United States."

We are particularly encouraged by the suggestions in Mr. Bush's radio address over the weekend that he has been relying, at least in part, on his constitutional powers - and responsibilities - as commander in chief and that he sees the constitutional authority as trumping the restrictions of FISA. Wouldn't it be nice to see that sorted out by the Roberts-Scalia-Thomas wing of the Supreme Court? Certainly the drift we discern in the court so far - not to mention also back during, say, World War II - is that it isn't going to permit the opponents of the war to stand on ceremony.

America is in a war with Islamic extremists who are trying to defeat our country. "Two of the terrorist hijackers who flew a jet into the Pentagon, Nawaf al Hamzi and Khalid al Mihdhar, communicated while they were in the United States to other members of al Qaeda who were overseas," Mr. Bush said in his radio address. "But we didn't know they were here, until it was too late." The president said the activities he authorized by the National Security Agency "make it more likely that killers like these 9/11 hijackers will be identified and located in time."

The idea that this is shocking is an idea that has stranded the Democrats in the wilderness. The managing editor of this newspaper has long kept a Cold War-era poster above his telephone with the warning, "Most telephone circuits are not secured. Keep telephone conversations unclassified." Anyone who thinks that non-encrypted international phone or e-mail conversations are secure had to have been naive to begin with. But terrorists are sometimes naive, or careless.

The majority of Americans, we're confident, are grateful to Mr. Bush for setting the listening in motion and hope it succeeds in preventing another attack like the one on September 11, 2001. If this listening were not happening, it'd be a scandal. You don't even need a wiretap to predict that the same partisan Democrats who are now denouncing the president for supposedly infringing on civil liberties would be denouncing him for failing to take the steps necessary to protect us.