The Right Coast

December 24, 2005
Kaus almost completely correct
By Tom Smith

Kaus is correct on all points except where he says that the NSA wiretapping was probably illegal.

I am afraid this has gotten to the point where it is really quite annoying. There are people who to all appearances are serious legal scholars evidently saying that even if the only way to stop terrorists from detonating a nuclear bomb in an American city is to data mine emails and phone calls so we can get ahead of the plotters, and even if it were not possible to do that in a timely way if you had to get a warrant from the FISA court, then it is just too bad. A million people will just have to die, too bad, so sad. And then, we are supposed to take that absurd claim seriously.

In the meantime, even if it were not a completely ridiculous position to take on its face, there is clear precedent that is directly on point. Not Harry Truman nationalizing the steel industry, hardly an analogous case anyway, but the FISA appeals court in Sealed Case 02-001 stating that they take it for granted that the President has the inherent power to wiretap for national security purposes, as in, of course the President doesn't have to get a warrant if he's trying to stop terrorists from blowing up Denver or something like that. Duh! Most of that case is about whether you can use the product of national security searches in criminal proceedings. But that federal appellate court never doubts for a moment that the President can tap al Qaeda's phone calls, nor would anyone with any sense. Thank goodness for Posner and Sunstein, or else Americans would be forced to conclude that most of us law professors were entirely out to lunch. There seems to be a pervasive confusion between the necessity of getting a warrant in most circumstances if you want to use the evidence in a criminal prosecution (and there are exceptions even in this case) and searching for terrrorists and their weapons who happen to be inside your borders. The latter is a national security function which the President has the authority to conduct without the permission of any judge. Are we seriously supposed to think that if the Canadian Army invaded Montana and then hid themselves in all those summer homes dotting the landscape, the Army would have to get search warrants to ferret them out? I don't think so. The proposal is idiotic on its face. Similarly, if the President finds out that sleeper cell 500 (which obviously would just never be in a Muslim neighborhood, because we all know the terrorists just could not conceivably be Muslim) has an atom bomb in a white house with green shutters in Detroit, and it's set to go off in three hours, he does not need to waste a minute getting some judge to say the Green Berets can kick down the door of every such house in Detroit until they find the bomb. Nor could Congress pass a law, say the Ineffectual and Ridiculous Anti-Defense Act of 2005, requiring that he do so. It has nothing to do with enforcing the law, or gathering evidence, and he doesn't need Congress's permission to defend the country against nuclear bombers; it's all about keeping Detroit from becoming a radioactive crater.

But here's an idea. Let some Republican Congressman and Senator propose resolutions demanding that the President immediately cease the NSA data mining and nuclear or dirty bomb radiation detection programs, as it is the sense of Congress that they are illegal. Let the brave critics go on the record as voting to stop them now. Of course they would not, because they would be afraid Detroit might be destroyed, and then their precious careers would be vaporized along with Motor City, and it is important to keep one's priorities straight. But if they are not willing to take responsibility for their position, then maybe they should just shut up, and let the President try to stop the people who are trying to murder us, a job he will be lucky enough to succeed at as it is.