The long scrolls of Bush Administration crimes, the ends of which are currently dangling about the feet of dedicated Bush-loathers, all include the charge that Bush trashed the Constitution in his warrantless surveillance after 9/11. Well, did he? Maybe not, according to the Foreign Intelligence Surveillance Court of Review. This from the New York Times (yes, it is still in business):
In a rare public ruling, a secret federal appeals court has said telecommunications companies must cooperate with the government to intercept international phone calls and e-mail of American citizens suspected of being spies or terrorists…
But the ruling, handed down in August 2008 by the Foreign Intelligence Surveillance Court of Review and made public Thursday, did not directly address whether President Bush was within his constitutional powers in ordering domestic wiretapping without warrants, without first getting Congressional approval, after the terrorist attacks of 2001.
Here is what is at question: no reasonable person doubts that the U.S. Government can monitor foreign communications that begin and originate abroad. Someone in Iran calls someone in Iraq, who calls someone in Oxford, and all of them are talking about "the next strike," well, we can listen in without bothering with warrants and all. Now, what if Oxford calls Chicago? Does Maxwell Smart have to determine whether the recipient is an American citizen, and if so, get a warrant, before he listens in? Well, that depends on how badly you want to monitor that intelligence.
The three-judge court, which hears rare appeals from the full Foreign Intelligence Surveillance Court, addressed provisions of the Protect America Act, passed by Congress in 2007 amid the controversy over Mr. Bush's program of wiretapping without warrants. It found that the administration had put in place sufficient privacy safeguards to meet the constitutional standards of the Fourth Amendment's ban on unreasonable searches. Because of that, the company had to cooperate, the court said.
That finding bolstered the Bush administration's broader arguments on wiretapping without warrants, both critics and supporters said.
William C. Banks, a law professor at Syracuse University who has criticized the administration's legal position on eavesdropping, said that while the ruling did not address Mr. Bush's surveillance without warrants directly, "it does bolster his case" by recognizing that eavesdropping for national security purposes did not always require warrants.
After the World Trade Center fell, Bush decided that stopping the next attack was not a matter of law enforcement, but a matter of war. It was imperative to find out what the terrorists were planning, and make them stop. I think he was right to do so. His most vociferous critics accused him of trampling of civil liberties, but I wonder how much those liberties would have been worth to most Americans if 9/11 had been followed by a series of terrible attacks. Americans have not yet been scared. The World Trade Center was in New York. We don't want to see what happens when we get really scared. If you want to protect civil liberties, and I certainly do, you have to stop the really big scare from happening.
Bush leaves office with peace of mind. I know BB will cringe at this, but he does. He kept the next thing from happening. I expect that the next President will do much the same as he did.
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