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Jihadis and Wiretaps and Moonbats! Oh, My! -- Part 12
(Click here for some earlier related posts.)
FISA Fallacies
Bush’s unconstitutional critics.
Rich Lowry
Is it written somewhere that the Constitution can be violated only by the president? One would think so, given the debate over the secret National Security Agency program to monitor, without court approval, calls between suspected al Qaeda operatives overseas and people in the United States. Opponents of the program say President Bush has trashed the Constitution, in particular the Fourth Amendment's prohibition against unreasonable searches.
The Constitution, however, doesn't exist solely to constrain the executive, as those braying about the NSA wiretaps seem to suggest. It confers powers on the executive as well as limiting them. If those powers are abridged by another branch of the government, the Constitution is being violated — and not, obviously, by the president.
Thus, only one player so far in the NSA controversy has been held by a court to have probably violated the constitution, and he's a judge. Judge James Robertson resigned from the Foreign Intelligence Surveillance Act court — the secret court that approves domestic wiretaps related to national security — to protest the NSA program, making him something of a cause celebre among Bush bashers. But he's an odd hero, given that his contribution to the debate over the executive's surveillance power was a flagrant error.
[Read on here.]
One a related note, Andrew McCarthy writes:
... Plainly, the Times in particular is frustrated over the fact that the public is simply not up in arms over the unremarkable fact that we are trying to penetrate the enemy's communications in wartime. So the next move is to try to convince people that the "spying" is far more widespread than they've been led to believe.
The sleight-of-hand used to inflate the NSA program is to subtly shift from emphasis on interception of phone calls to, as the Times puts it, the "volume of information harvested from telecommunication data and voice networks." This, we are breathlessly told, is being done "without court-approved warrants" and in an amount "much larger than the White House has acknowledged."
There's only one problem. As a matter of law, all telephone/email information is not constitutionally or statutorily equal. The interception of content (what you say to me and I say to you in a call or an email) requires court approval based on probable cause in most (but, importantly, not all) instances. But other telecommunication data -- e.g., the fact that my phone number called your phone number at such-and-such at time on such-and-such a date, and that we spoke for seven minutes -- does not. The latter category of information does not implicate the Fourth Amendment at all because no one has a reasonable expectation of privacy with respect to it.
There's nothing new about this. Here's how the Supreme Court analyzed the matter nearly three decades ago in Smith v. Maryland (1979): [...]
It is disingenuous to suggest, as the Times does, that court-approved warrants are required for the collection of such information. They are not ...
[Read the whole thing here. Hat tip: Michelle Malkin]
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