Posted on December 31, 2005

by

Daniel Clark

Liberals, libertarians and "maverick" Republicans are asking whether the U.S. government should be allowed to "spy on Americans." They should instead be asking whether al-Qaeda terrorists should be allowed to use America's borders to shield themselves from surveillance. That's what the effect of abolishing the National Security Agency's "controversial" anti-terror policy would be.

President Bush defends the NSA's eavesdropping on terror suspects without warrant, by citing the powers that Congress assigned him shortly after 9-11. This argument hinges on his contention that the authorization the legislature gave him to take military action against our terrorist enemies is in fact a declaration of war, and therefore satisfies Sec. 1811 of the Foreign Intelligence Surveillance Act (FISA). That's the section that allows the president to authorize electronic surveillance without a court order, following a declaration of war by Congress.

The difficulty in interpreting this section is that there is no legal definition of a declaration of war. Some members of Congress might argue that the bill they entitled Authorization for Use of Military Force does not constitute such a declaration, just because they didn't attach the word "war" to it. However, that semantic distinction does not alter the substance of the bill, which declares:

"That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

The administration's position that this language comprises a declaration of war is certainly a defensible argument, if not a compelling one. The burden of proof being on the accuser, it is unimaginable that the president could be found in violation of the law.

Some, like the ACLU, have charged instead that Bush's order is an unconstitutional violation of the Fourth Amendment, but this argument does not even merit polite discussion. The Fourth Amendment says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Electronic communications cannot be categorized as persons, houses, papers or effects, and are therefore not protected by the amendment. Anybody who is making this bogus argument, that intercepting the communications of our wartime enemies is unconstitutional, ought to examine just why he would care to believe such a thing.

The NSA's electronic surveillance of our enemies is not in dispute, just as long as both ends of the communication are located overseas. It is only when one of the communicants is inside the United States that the program is deemed controversial. Not only is that illogical, it's dangerous. A conversation involving a known al-Qaeda member is a far more immediate threat to us if his contact is in New York than if he's in Iraq, Malaysia or Chechnya. If President Bush's critics had their way, the United States would become al-Qaeda's home base. Once a terrorist set foot on American soil, he would be protected by the very country he sought to destroy.

This is precisely why a wartime exception was written into FISA in the first place. No Congress -- even one with a Democrat majority -- would have written a law that made our own country a safe haven for foreign terrorists. Nevertheless, critics of the NSA program have chosen to believe that FISA does just that.

Much of their criticism has focused on the assertion that the surveillance is "targeting Americans." What it really targets are terror suspects inside the United States. Whether or not those people are Americans is unknown. Moreover, it's irrelevant. John Walker Lindh is an American. If he hadn't been captured in Afghanistan, but instead had returned to America and begun communicating with known al-Qaeda members, should the NSA have looked the other way? Furthermore, what sense does it make that we could have intercepted Lindh's communications in Afghanistan without incident, but listening in on a foreign terrorist on U.S. soil is condemned as "spying on Americans"?

This anti-"snooping" demagoguery was taken to its hysterical extreme by CNN, which during a roundtable discussion on the topic, ran a caption at the bottom of the screen that read, "SPYING ON YOU." Given the demographics of CNN's audience these days, this may have actually been true. But seriously, no news organization could have possibly read the New York Times story that leaked the NSA program, and understood it to mean that the U.S. government was spying on the innocent Americans who, for whatever reason, happened to be watching CNN at that time.

It's not that those who condemn this surveillance fail to understand that it is targeted at terror suspects; it's just that they fail to see any moral difference between our enemies and ourselves. Even if there were some legal loophole that allowed the president to eavesdrop on domestic political opponents looking for scandal-fodder, almost everybody would recognize that it was wrong, and demand that it be stopped. The anti-war Left sees surveillance of our enemies the same way. Even after they've failed to punch any holes in the president's legal argument, they'll still demand respect for the terrorists' "civil liberties."

This is the same mentality that we see behind demands that terrorists captured in combat be given access to American courts, as well as credulous reporting on fabricated complaints of abuse at Guantanamo Bay prison, and worries about whether or not Saddam Hussein can get a fair trial. At the center of it is a fundamental denial that we are at war -- or rather, that we ought to be at war.

It is an outgrowth of the "why do they hate us" philosophy, which holds America indirectly responsible for 9-11, and blames our presence in Iraq for "making more terrorists." By this way of thinking, we are at least equally at fault for anything our enemies do. We suffered through a similar plague of moral relativism during the Cold War, but luckily, we had Ronald Reagan to warn us against it.

"I urge you to beware the temptation of pride," Reagan told the National Association of Evangelicals in 1983, "the temptation of blithely declaring yourselves above it all and label [sic] both sides equally at fault, to ignore the facts of history and the aggressive impulses of an evil empire, to simply call the arms race a giant misunderstanding and thereby remove yourself from the struggle between right and wrong, and good and evil."

He could just as easily have been talking about the War on Terror, and addressing people who roll their eyes whenever President Bush refers to al-Qaeda and other terrorists as "evildoers." Having removed themselves from the struggle between good and evil, they can't imagine that foiling a terrorist plot to kill hundreds of innocent Americans is any justification for committing the offense of "snooping." They must realize that this attitude may ultimately kill them, but at least they can comfort themselves by knowing that they'll die with high self-esteem.

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