So the government is snooping on domestic terrorists who take phone calls from Al Qaeda. The horror. What to think of this? Let me dissent slightly from Prof. Blanchard, although I am in basic agreement.
A friend who knows more about the Foreign Intelligence Surveillance Act (FISA) than I do tells me that under this act the executive is allowed warrantless searches and can obtain the warrant up to fifteen days after the fact. This allows the executive to do what the Bush administration did: do surveillance (or as it is omniously called "spying") for national security reasons when time is of the essence and it may be impractical or unwise for security reasons to go to a court. But the law also installs a time limit, so as to keep the executive honest.
Apparently the Bush administration did not make use of this ability to obtain a warrant after the fact. This is what my friend finds suspicious. He surmises that the Bush administration calculated that the evidence the administration had was not strong enough to show probable cause, but was strong enough that they acted on it anyway. That does seem to run afoul with the law.
Here's my problem with that scenario, and here I need a lawyer's help. If I conduct a raid on Al Capone and I find his personal phone book, and in this book I find Jason Heppler's name and number and even find some evidence that Mr. Capone has been calling Mr. Heppler, I would think that this is enough probable cause to tap Mr. Heppler's phone. Lawyers: Am I wrong? Because, as Prof. Blanchard suggested, this is essentially what is going on here. Al Qaeda guy overseas gets in touch with guy in America. The United States captures overseas Al Qaeda guy and finds America guy's phone number in overseas Al Qaeda guy's cell phone. Because of the Al Qaeda network, it won't take long before America guy knows overseas Al Qaeda guy has been captured. So the government, with no time to spare, starts surveillance on America guy's phone. This makes sense.
Let's assume this is the case, and I stress that it may not be. The Bush administration had evidence that people domestically were getting messages from Al Qaeda. But that evidence did not rise to the level of probable cause. So the Bushies decide to do surveillance without court approval. Is this wrong? Mr. Epp opines that this is akin to "We had to destroy the village to save it." I take it that that is not a compliment. But is the Bush position untenable. I point out this quote from another war president:
To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?
This is Abraham Lincoln on July 4, 1861 explaining to Congress why he had to violate the Constitution in order to save it. Those violations included suspension of habeas corpus without the approval of Congress, spending money out of the treasury without congressional approval, and raising troops without congressional approval. When the Constitution was threatened, Lincoln appealed to his oath to "faithfully execute" the laws and "to protect and defend the Constitution" as giving him the power and even the duty to do what it takes to defend the Constitution and the Union. Lincoln argued that he had to violate particulars of the Constitution in order to save the whole thing. I happen to think Lincoln was right and so did Congress, as they ratified Lincoln's actions.
One's view of the current situation depends on one's view of the enemy. What if Al Qaeda in particular, and international terrorism in general, is a threat to the very existence of our Union? If one sees terrorism as a serious threat to the United States, then what Bush did, even if was a technical violation of the law, may have been Constitutionally defendable. If one has a lesser view of terrorism, one is likely to come to a different conclusion. My partial dissent from Prof. Blanchard is that I think Bush may have actually violated the law. But I also wish to make the point that Bush's actions are not without precedent nor are they beyond the pale. They may even be constitutional. That seems to be the Bush administration's position. Using his power as commander-in-chief and in fulfilling his duty to "to protect and defend the Constitution" he did what was necessary. If he over stepped his bounds the proper resolution is for Congress to voice it's disapproval and also perhaps adjust the law. This is a matter where the clash between branches is a healthy thing.
Update: This DOJ document makes a legal argument that warrantless searches are allowable when a "foreign power" is involved. It argues in footnote 30:
The [Suprme] Court in a footnote though, cited authority for the view that warrantless surveillance may be constitutional where foreign powers are involved. Keith, 407 U.S. at 322 n.20.
I have not read this document in any detail, so I cannot comment beyond simply posting the argument.
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