Ruling for the Terrorists

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The American Civil Liberties Union may know how to craft a winning legal brief but it seems to be clueless when it comes to reading a newspaper. It has just succeeded in persuading a federal judge to block the National Security Agency’s counter-terrorist wiretapping program exactly a week after — you guessed it — wiretapping helped British authorities bust up a terrorist plot. Whether or not the NSA was listening in on any of the London-related calls, and we may never know, the episode certainly does demonstrate the importance of such tapping. Good going, guys.

Yesterday’s ruling follows the disclosure in December of an NSA program to listen in on calls between suspected terrorists abroad and those on American soil who might be communicating with them. The NSA has always had the green light to listen in on calls between two parties when both of them were overseas, and also to listen in to an America-to-abroad call from the abroad end of the line. The Bush administration’s remarkable innovation was to start tapping those calls from the American end, as well as collecting data on calling patterns that would allow intelligence experts to spot suspect patterns and identify other potential terrorists.

Which has now led to another “innovation” of sorts, as one could politely call Judge Anna Diggs Taylor’s opinion. Any wiretapping or surveillance program raises some constitutional issues, and the passage in 1978 of the Foreign Intelligence Surveillance Act has certainly muddied the water, but Judge Taylor’s ruling makes a hash of no fewer than two constitutional amendments in addition to FISA. Between the muddled historical analogies, the uncritical regurgitation of various ACLU claims, and the grandiloquent constitutional pronouncements, this ruling is something to behold indeed.

Judge Taylor bought into the ACLU’s line that the Fourth Amendment’s prohibition on unreasonable search and seizure without a warrant extends to national security surveillance. This is novel. The Supreme Court has addressed the question of the president’s national security powers at least three times since 1967. Each time it has come down on the side of an expansive view of the president’s authority to conduct surveillance against foreign powers and terrorist organizations.

Congress attempted to circumscribe that executive power with FISA, but the courts have proven skeptical of that effort. Even the Foreign Intelligence Surveillance Court of Review, a tribunal established under FISA itself, has ruled that the president has inherent authority to conduct such surveillance and that FISA can not be read to preclude his exercise of that power.

Judge Taylor bolstered her opinion with historical references to the general warrants George III tried to use against the colonists, arguing that President Bush’s wiretapping program constituted the same kind of abusive practice the Founders intended to block when they penned the Fourth Amendment. Nice try. While the general warrants of the 18th century, which allowed agents of the crown to roam the countryside looking for anti-royalists, certainly were abusive, the ACLU stipulates in one of its own court filings that such is not the case here.

To make its technical point that the administration has not relied on the legal standard of “probable cause” in deciding which phone lines to tap, the ACLU actually quotes liberally from administration officials noting the lengths to which they go to narrow the surveillance to the phone lines of individuals the authorities have good reason to believe are connected to terrorists or terrorist activities. This clearly satisfies long judicial precedent requiring only that the president limit such surveillance to those who might pose a security threat. For all her pronouncements that “the President of the United States is himself created by [the] Constitution,” Judge Taylor shows nothing so much as that she doesn’t get it.

The administration plans to appeal, and, while we hope it will prevail, it’s clear the hard-left is going to play the courts for all it’s worth. Let it be a warning in election season. It was President Carter who signed FISA, botched the Iranian hostage stand-off, and appointed Judge Taylor. So we get a glimpse in this ruling of what a Jimmy Carter war on terror would look like. Senators Kerry and Kennedy both issued statements lauding the ruling. Last week’s London plot showed how sophisticated the enemy in the war on terror can be and how aggressive law enforcement and intelligence services need to be to counter that threat.

The New York Sun

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