Redstate

By AcademicElephant Posted in User Blogs — Comments (6) / Email this page » / Leave a comment »

On Neil Cavuto's show yesterday afternoon, the Vice President argued that "domestic surveillance" (the term I have used to describe the controversial NSA program in preference to "spying") is inaccurate: "it's not domestic surveillance. The implication of that is somehow we're listening in on Americans talking to Americans and so forth. What this specifically is about, as the President has been very clear, is a situation in which we have communications, but one end of which is in the United States, the other end of which is overseas, and one end of which we have reason to believe is al Qaeda-affiliated."  I think he's got a point, so I'm switching to "terrorist surveillance" as a more appropriate moniker.  This interview, along with a second one with Larry Kudlow and Cheney's speech to the Manhattan Institute, were the most high-profile elements in a co-ordinated program that was launched yesterday to lay out the administration's legal case supporting the terrorist surveillance program in response to the Al Gore "George-Bush-has-been-breaking-the-law-repeatedly-and-persistently" rant from Monday and in anticipation of the House democrats' investigation kicking  off today and the Judiciary Committee hearings coming up in two weeks.  On the one hand, you could argue that it's a pity the administration has to make this case at all, but I don't think so.  In my opinion, while it is unfortunate that the NSA program has been "outed," now that it has, this is an opportunity to demonstrate the serious and concerted efforts that are being made to fight the GWoT at home as well as abroad.  Cheney's an excellent spokesperson in this effort for several reasons.  For example, and for good or ill, everyone thinks he's at the bottom of it, so he probably knows of what he speaks.  In addition, he has a deep, abiding and genuine concern about additional terrorist attacks on U.S. soil, and this comes through in his remarks.  This combination of authority and urgency worked well yesterday.  From the speech:

Another absolutely vital requirement in the war on terror is that we use whatever means are appropriate to try to find out the intentions of the enemy. To this end, in the days following 9/11, the President authorized the National Security Agency to intercept a certain category of terrorist-linked international communications. Let me emphasize that, because you frequently hear this called a "domestic surveillance program." It is not. We are talking about international communications, one end of which we have reason to believe is related to al Qaeda or to terrorist networks affiliated with al Qaeda. It's hard to think of any category of information that could be more important to the safety of the United States than international communications one end of which we have reason to believe is related to al Qaeda.

If you'll recall, the report of the 9/11 Commission, it focused on our inability to uncover links between terrorists at home and terrorists abroad. The authorization the President made after September 11th helped address that problem in a manner that is fully consistent with the constitutional responsibilities and legal authority of the President, and with the civil liberties of the American people.

The activities conducted under this authorization have helped us detect and prevent possible terrorist attacks against the American people. As such, this program is critical to the national security of the United States.

A spirited debate is now underway, and our message to the American people is clear and straightforward: These actions are within the President's authority and responsibility under the Constitution and laws; and these actions are vital to our security. This is a wartime measure, limited in scope to surveillance associated with terrorists, and conducted in a way that safeguards the civil liberties of our people. It is important to note that leaders of Congress have been briefed more than a dozen times on the President's authorization, and on the activities conducted under it. I've personally presided over most of those briefings. In addition, the entire program undergoes a thorough review within the executive branch every 45 days. After each review, the President determines once again whether or not to reauthorize the program. He has done so more than 30 times since September 11th -- and he has indicated his intent to do so as long as our nation faces a continuing threat from al Qaeda and related organizations.

I would say that's a pretty good party line.

The Vice-President was not alone in making this case.  The most significant article that no-one read yesterday (because it was on the Wall Street Journal's "subscription only" section) was Victoria Toensing's "Terrorists on Tap."  Yes, Ms. Toensing is a card-carrying Republican, but like Mr. Cheney she has considerable expertise in this area ("I have extensive experience with the consequences of government bungling due to over-strict interpretations of FISA. As chief counsel for the Senate Intelligence Committee from 1981 to 1984, I participated in oversight of FISA in the first years after its passage. When I subsequently became deputy assistant attorney general in the Reagan administration, one of my responsibilities was the terrorism portfolio, which included working with FISA."). In her article, Ms. Toensing directly rebutted former VP Al Gore's accusations:

In a speech this week, former vice president Al Gore took another swing at the National Security Agency's electronic surveillance program, which monitors international communications when one party is affiliated with terrorists...[t]he question he raises is whether the president illegally bypassed the Foreign Intelligence Surveillance Act (FISA). But the real issue is national security: FISA is as adept at detecting -- and, thus, preventing -- a terrorist attack as a horse-and-buggy is at getting us from New York to Paris.

I thought this was interesting:

And to correct an oft-cited misconception, there are no five-minute "emergency" taps. FISA still requires extensive time-consuming procedures. To prepare the two-to-three-inch thick applications for non-emergency warrants takes months. The so-called emergency procedure cannot be done in a few hours, let alone minutes.

And in response to the question of why the President did not seek legislative redress to amend FISA:

My experience is instructive. After the TWA incident, I suggested asking the Hill to change the law. A career Justice Department official responded, "Congress will make it a political issue and we may come away with less ability to monitor." The political posturing by Democrats who suddenly found problems with the NSA program after four years of supporting it during classified briefings only confirms that concern.

In addition, Mort Kondrake interviewed Homeland Security Secretary Michael Chertoff on this issue yesterday for a Roll Call article that appeared this morning.  In "NSA Data Mining Is Legal, Necessary," Chertoff asserts that "[d]espite the alarms sounded by the American Civil Liberties Union, former Vice President Al Gore and various Members of Congress, 'there hasn't even been a hint' that the program is targeted at domestic dissidents or innocent bystanders.  It's designed to find and stop terrorists."  This is an important point, because from the beginning I've heard commentators (Kondrake among them) point out that the real Achilles heel of this program would be if it were ever targeted at civilians for political purposes.  Chertoff seems pretty clear here that it has never been used in this way.  The Secretary also responded to a New York Times article this week that noted most of the leads generated by the terrorist surveillance program had not panned out:

"You're going to bat well below .100 any time you do intelligence gathering. That's true even in conventional law enforcement. If you get even a small percentage of things to pan out, you've succeeded to a significant degree.  What I can tell you is this, [t]he technique of electronic surveillance, which is gathering information about who calls whom or intercepting actual conversation, is the most significant tool in the war against terrorism.  If we didn't have it, I'm quite sure we'd have disrupted fewer attacks and identified fewer [terrorists].  I would rather move quickly and remove somebody when we've got a legal basis to do so, charge them with a lesser offense [than terrorism] or deport them, than wait till I have a big case with a big press conference. If we wait until people get operational, it's a failure. Somebody could get killed."

Keeping Americans safe is more important than a splashy press conference.  Fancy that.

Finally, and most importantly, the Department of Justice also chimed in yesterday with a 42-page legal document defending the legality of the terrorist surveillance program.  The document addresses both the FISA statute and potential Fourth Amendment issues, and is surprisingly legible even for this non-lawyer.  I strongly recommend reading this, especially if you're concerned not so much about the necessity of the program but that the President took its legality lightly.  According to this, it was quite the opposite.

I wonder if the House dems have bothered to read it, or if they just skimmed the New York Times gloss?

And finally, just because this made me laugh, yesterday the current VP had a thing or two to say about his predecessor:

"I don't have a lot of confidence in Al Gore's judgments or commentary about these kinds of issues...[a]nd of course, the fact of the matter is that this is a good, sound program. Al Gore can say whatever he wants to say about it. The fact is, knowing what I know and having been involved from the very beginning, I would want to be absolutely certain that the man who was making the key decisions to safeguard the nation would do exactly what George Bush did. And frankly, I hear Al Gore make those kinds of comments I'm just reminded of how fortunate we are that he didn't get elected in 2000."

Amen to that, Mr. Cheney.