Catch Them, but Do Not Watch Them!
Walid Phares is outraged that the administration is not doing enough electronic surveillance within U.S. borders and believes the press is missing the boat in its coverage.
. . . I was surprised as I continued reading the AP report that it did not criticize the administration for not doing enough surveillance of terror-related activities but for doing too much, or as it was framed in the media later: Spying on U.S. citizens! The argument was coined in pure theoretical Ã¢€” albeit erroneous- sculpture: The president was ordering spying on Americans, inside the country. Hence, he had Ã¢€” according to some Ã¢€” broken the law. Reading and listening to the surreal new debate, I thought of how al-Qaeda must be laughing. In one of his caves in middle earth, Osama bin Laden and Ayman Zawahiri must be in disbelief, yelling, “By Allah, had we known we were barely monitored; we could have pulled out the big one!”
But AmericaÃ¢€™s political debate is happening on a different planet: itÃ¢€™s about L.A. Law, finding scandals, and who can get a story out; regardless of reflecting on what we’ll need to do to win the War on Terror. The new “story” was given a title before it is investigated: it is spying on Americans rather than being about gathering information on terrorists. So if the terrorists happen to be U.S. citizens (a citizenship Jihadists can obtain swiftly) their status of terrorist is overridden by their legal status. But the critics stated that it is not about the War on Terror, but about civil liberties. A president must use the FISA Act’s process: ask a special court for authorization to wiretap a suspected terrorist.
Furthermore, he believes the legal debate is misframed:
During wartime, the military engages in searches and surveillance without a warrant. We do not, for example, require the armed forces to seek a warrant when it conducts visual or electronic surveillance of enemy forces or of a battlefield, or when it searches buildings, houses, and vehicles for the enemy. Nor must military operations within the United States operate under a different rule.
The question is clear: Are we or are we not at war with the terrorists? Osama bin Laden declared that war in 1998. The bipartisan 9/11 Commission wondered why the previous administration refused to do so and the incumbent held off until October 2001. The jihadists are present within the U.S., including those who carry U.S. passports. So are other terror jihadists in Spain, Britain, Holland, or France. By pure rationale, the U.S. government has the duty to use all means (approved by war conventions) to resist the penetration and infiltration of the United States. Doing otherwise is unlawful, unconstitutional, and more importantly to the detriment of the security, and therefore the liberty of the American people. But regardless of any general legal argument, attorney John Yoo provides us with a technical legal provision. He writes:
“Therefore, if al-Qaeda forces organize and carry out missions to attack civilian or military targets within the United States, government surveillance of terrorists would not be law enforcement so much as military operations. In such circumstances, when the government is not pursuing an ordinary criminal law enforcement objective, the Fourth Amendment requires no search warrant.”
Phares contends that the terrorists are now in a much better position than they were when the NYT story on this came out last week:
Meanwhile, al-Qaeda is learning more about our system Ã¢€” not about the fact that the U.S. government has been monitoring them, but how little it has done and how easy it is to attack these measures within the U.S. system. The terrorists in charge of penetrating U.S. national security are better off this week than last. They would have learned how many times the president has authorized exceptional surveillance; they would have understood why the pressure was higher on terror between 2001 and 2005; and above all they would have realized that politicians in America (and their academic advisors) are detached from the reality of the post-9/11 world.
Al-Qaeda knew it was under surveillance in America, but it didnÃ¢€™t know much about that system. Soon, it will know and will use this knowledge to its advantage. While some among us are rotating their pre-9/11 planet back in time, future jihad is railing against another of its enemies’ fatal weaknesses.
With some caveats, I agree.
The fact that the enemy is a hard one to defeat is not a blanket rationale for suspending the rights of Americans. It is, however, cause for understanding that those charged with protecting us might push the envelope.
I disagree, for example, with the creation of the TSA and the intrusive searches people under zero suspicion are forced to undergo to exercise their right to travel. Such searches would seem to violate the plain meaning of the 4th Amendment, although the courts have upheld them and the public largely accepts them. And that’s true even though there is no evidence–unlike the NSA case–that the searches have deterred a single terrorist act.
Presidents are, like all citizens, required to obey the law of the land. If the NSA were spying on the political opponents of the Bush administration or even if it were spying on U.S. citizens with the intent to gather information for use in criminal prosecution, it would be a serious matter. As I understand the facts of this case, though, the president has authorized only spying on non-citizens in cases where at least one party to the conversation was outside the country. Further, the intent was to gather information to thwart terrorist attacks, not prosecute criminals.
As I’ve written repeatedly, we need more information here to properly understand the administration’s rationale for doing the eavesdropping without asking for FISA warrants. My strong suspicion is that there is a reasonable explanation. It would be quite helpful if it were forthcoming.
Previously at OTB: