National Security Wiretapping: Legal or Political?

Is the international wiretapping just revealed legal? I offer my opinion that it will not be ruled by Congress as illegal but will be restricted further by Congress. Further, the President may build on his success at sawing off the extreme Democrats’ limb on this issue as he has on their overharping exaggerations regarding 2002 intelligence, but must be careful not to go out on his own limb by overdefensiveness of his wiretapping actions.

The outcome of this latest brouhaha will be judged in the political sphere, and that’s where it belongs.

Lawyers don’t and won’t agree among themselves on the laws involved here, and commentators have only a glimmer of what specific national security threats or benefits may be involved and may never if so sensitive. Their contributions to the political debate – as opinion leaders -- will be important, if not crucial, however. More important will be the crystallization of public sentiment – usually of greater collective common sense -- as imperfectly measured by various polls and elections.

Indeed, the sooner that public opinion is moved toward a conclusion the better, both for our national security and our nation’s ability not to be overly distracted from other pressing priorities at home and abroad.

Those opposed to or critical of the President’s actions appear to have the weight of momentum on their side at present, particularly in Congress and the mass media. The stubbornness on both sides of the aisle to allow anything but Marquis of Queensbury rules to apply to interrogations of foreign terrorists caught in the act, and the only slim majority of Senators voting cloture on the filibuster of extending the Patriot Act by those who want tighter judicial restraints, strongly indicates a less than overwhelming support for war time firm measures.

This is consistent with the proper inclination among Americans and our representatives in favor of protecting civil liberties.

It is also consistent with, to Congress’ discredit, its pattern of second-guess grandstanding regardless of the injurious consequences to effective intelligence or to fulfilling its oversight role. The disinclination of Congress to reform itself in accord with the 9/11 Commission’s recommendations – even as it shuffled the intelligence agencies deck and created additional bureaucracy – indicates its lackadaisical devotion to provide for more efficient oversight and direction of intelligence. Surely this reading of Congress’ usual reluctance to specifically preauthorize explicit firm measures, coupled with its sievelike irresponsibility toward national security secrets, fed into the administrations’ reluctance to return to the well for additional authority from the Foreign Intelligence Surveillance Act or, later, the Patriot Act.

Public opinion polls show less support for such genteel or responsibility-avoidance Congressional deliberations, but not a public uproar at they being too extreme. The President has lately tried with some success to increase public support for his firmness. But, sadly, overwhelming public outrage at the excess neutering of American intelligence would only follow another catastrophe tied to feeble intelligence, and would probably be as relatively short-lasting.

The predictable instant calls for impeachment from the furthest left Democrats, the same who ideologically find fault with anything done in the nation’s defense, are telling only of their own 10-30% of the public (depending on the issue). More serious, and to be seriously respected, is the larger proportion of the opinion elites – liberal, middle-of-road and many conservative – concerned at defense of basic American values of civil liberties, and most believing that defense of them is on or pretty near par with defense of national security. There is a fundamental respect for due process among Americans that cannot be denied nor discouraged, nor should it be as it is in the interest of everyone, of all stripes, over time in a vibrant and stable democracy.

There are many side issues that will be considered, not least of which is the clearly illegal exposure of national security secrets, especially in a long line of such by intelligence agency employees opposed to official policies, and the selective exploitation of these disclosures in ways and timed by the mass media targeted at political influence.

Before offering my suggestions, here I reveal my inclinations toward automatic defense of civil liberties except in extreme overriding instances, for strong congressional responsibility and accountability for exercising constitutional oversight, deference to presidential judgments subject to constitutional and traditional restraints and guidance, unswerving insistence on sustaining process to provide for both lasting fairness and soberly moral ends, and the overriding importance of national security when warranted in deciding the specific course of interpreting the above.

The proactive posture by the President that will be most effective, for the preservation of national security, political peace, presidential and Congressional authority, and the enlargement of public education and support of an energetic defense posture, will be:

1. As he has learned, to his rue from prior reliance on others to carry the defense of our Iraq engagement, and corrected to a turnabout in public perceptions, a vigorous public defense by the President of both the vital necessity and legality of his tapping actions, coupled with as much detail as deemed prudent;
2. The President should quickly propose a highly specific Act to Congress both empowering emergency and fast-reaction intelligence measures and at the same time agreed, secure means of follow-up review and authorization by foreign intelligence judges, with consultation with a responsible joint intelligence committee of Congress that is also held to strict penalties for disclosing secrets. This is consistent with the constitutional authorities, issues, and political and public dispositions involved. It will defuse all but the most extreme hawkers of crassly exploitive power abuse charges, and put them on the defensive. Such cooperative legislation is analogous in some respects to the precedent of the War Powers Act, where deference to its Congressional intent is provided by additional formal consultation with Congress and agreement to Congressional acts authorizing armed forces abroad “concurrent with” instead of “pursuant to” the War Powers Act. It is also, more currently, consistent to the administration’s, albeit reluctant, acquiescence to the principle that the constitutional term “reasonable” in terms of treating captured terrorists provides emergency latitude to the president.

This two-pronged offensive will constructively both sanely frame the debate and force appropriate responsibility and accountability upon Congress, while focusing public attention on the core critical issues in faith at its usual collective sense in judging national priorities. Extremists of the left and the Democrat Party will be further exposed as acting in ways irresponsible and contrary to American interests in domestic and international security, and further isolated.

The management and proper treatment of secret intelligence wiretaps is not a legal matter, nor should it be as the law is not specific enough. This is a political matter – the proper realm of cooperative negotiation and of encouragement of public support for necessary national security measures that also reasonably defend our basic values.