I am constantly amazed and a bit appalled at what is either a total lack of understanding or merely an obtuse partisanship by so many in interpreting the Foreign Intelligence Surveillance Act (FISA) and its application to the warrantless wiretapping of foreign terrorists. The resultant message presents a flawed and one-sided appraisal to a public that deserves better.
To expect universal agreement in the areas of either domestic or foreign policy is to be somewhat naive; nevertheless, any politicizing of national security is disgraceful. While much of the electorate might be convinced that FISA provides the president the requisite tools for wiretap approval, anyone with experience or knowledge of electronic communications interception knows that is an absurdity. FISA was passed by Congress in 1978, when the data was largely telephonic — the electronic advances have multiplied FISA’s burden by tens of thousands of enemy communications.
The March 14 issue of the Missourian described a local gathering of a panel of legal experts to discuss the administration’s wiretapping and the granting of amnesty to participating telecommunications companies. I do not presume to judge the panel’s legal qualifications; however, I hope you will pardon me if I question its impartiality with two attorneys with American Civil Liberties Union ties, and MU professors of law and journalism respectively. I saw little promise of objectivity.
At least one member of the panel concluded that the surveillance was illegal and all considered it a violation of the privacy guaranteed by the Fourth Amendment — the panel mirrored the conclusions of the decidedly left-of-center, including the ACLU and the New York Times, who have declared warrantless wiretapping illegal. That has no basis in fact.
Beginning with the Carter administration, each succeeding president has conducted surveillance without a warrant in those cases deemed necessary by his attorney general. Presidents Reagan, George H. W. Bush and Clinton all availed themselves of this procedure, bypassing FISA when abnormal circumstance so dictated. And, in every incidence save one, the appellate courts have found in favor of the government. The one challenge, upheld by a federal district judge in Detroit, was overturned when the appellate court dismissed the lawsuit and the ACLU’s subsequent appeal was denied by the Supreme Court.
The public’s concern over individual privacy is understood, but that right must be balanced by a common sense approach, ignoring media and special interest-induced paranoia or disinformation promulgated by those with an ax to grind against the president. Until the courts declare the wiretapping sans warrants of foreign initiated communications to be unconstitutional, the surveillance will continue. The specious argument that the FISA court has denied a small percentage of the 20,000 requests since 1979 conveniently ignores the other tens of thousands of electronic intercepts by the CIA and NSA since 2000.
The Senate in bipartisan agreement passed its bill, but the House is balking at the provision granting immunity from lawsuits to the telecommunications companies for responding affirmatively to the president’s request for their assistance in identifying terrorist communications. In the spirit of all that is fair, does it not seem a bit contemptible to punish these companies for answering their country’s call in the interests of national defense? One can only imagine the response of President Franklin Roosevelt had the House behaved in this manner during World War II.
Every federal appellate court, including the congressionally created Foreign Intelligence Court of Review, has conceded the president’s inherent Article II authority under the Constitution to conduct surveillance on foreign threats to national security. The telecommunications industry is the vehicle by which most of the data are collected; accordingly, if that industry is to be subjected to megabucks class action suits by trial lawyers for merely assisting in the security of the U.S., that cooperation will surely dry up.
Contrary to that which you may have been led to believe, the administration has no interest in your communication activities unless they originate to or from a known foreign terrorist source. And, I don’t really care who you are or what your business may be, should you be communicating with terrorists, I want the president to know it. The right to privacy does not include treason.
J. Karl Miller of Columbia retired as a colonel in the U.S. Marine Corps. He can be reached via e-mail at JKARLUSMC@aol.com.