NSA Wiretapping and Political Discourse

Sandefur posted an unusually important bit of information about the NSA wiretapping scandal at Positive Liberty the other day. Quoting Robert Levy, a constitutional scholar at the Cato Institute, he established that the FISA law explicitly said that warrantless wiretaps were only allowed during the first 15 days after war was declared:

Second, in FISA, §1811, Congress expressly contemplated warrantless wiretaps during wartime, and limited them to the first 15 days after war is declared. The statute reads: "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress."

This is very, very important. Since the FISA law was amended by the Patriot Act, it was obviously within the power of Congress to change the provisions of that law in order to allow warrantless wiretaps. This makes the President's argument that Congress had intended to authorize such powers through the AUMF a non-starter, taking away their primary argument for the legality of the wiretap program. But I think it's important for another reason as well.

One of the things that most annoys me about political discourse in America is the tendency to substitute labels for actual argument. I blame this primarily upon the rise of talk radio, with its predominately juvenile and simplistic form of argument, and on the ubiquity of news-by-soundbite. In today's mass media, newspapers and magazines have steadily lost readership as people turn to the primarily flashy and shallow cable news shows for their information. Rather than having a 600 to 1000 word column establishing an argument, viewers are fed a stream of 5 second soundbites.

In this kind of news environment, political discussion is reduced to a battle of the pithiest comments and the most effective catchphrases that can be stated in a few seconds time. Thus, the now almost inescapable phenomenon of what I will call the argumentum ad labelum, where someone assumes that merely by labelling an argument as "liberal", for example, they have defeated the argument (and of course, the same type of argument is often heard from the other side as well, usually by applying the "neo-con" label to whatever argument they think they're defeating). So what does this have to do with the NSA wiretapping scandal?

We can see such an argumentum ad labelum at work all over TV news shows as the President's defenders spread out on the talk shows to dismiss everyone critical of the NSA wiretapping as nothing more than "liberals" out to damage the President for political purposes. Some even go further and argue that those who criticize the NSA wiretapping are actually helping the terrorists. Pat Buchanan was on TV last night arguing that the New York Times had committed treason by reporting on the wiretapping program. A textbook example of this type of argument is found in this Weekly Standard article by William Kristol:

No reasonable American, no decent human being, wants to send up a white flag in the war on terror. But leading spokesmen for American liberalism-hostile beyond reason to the Bush administration, and ready to believe the worst about American public servants-seem to have concluded that the terror threat is mostly imaginary. It is the threat to civil liberties from George W. Bush that is the real danger. These liberals recoil unthinkingly from the obvious fact that our national security requires policies that are a step (but only a careful step) removed from ACLU dogma.

Well yes, of course. Anyone who objects to giving the President completely unchecked authority to order wiretaps on anyone he pleases is just a "liberal" who is "hostile beyond reason" to President Bush. But the simple fact is that there is very solid ground for criticizing the wiretap program as illegal and that criticism is not just coming from "liberals". Norm Ornstein, analyst at the conservative American Enterprise Institute, has been very critical of the program. A couple weeks ago he wrote:

The Bush approach to presidential power is simple, straightforward and clear: "L'etat, c'est moi." As conservative constitutional scholar Bruce Fein puts it, even King George III would blush at asserting this level of bald, unchecked power. But the way in which the president is handling the revelations of secret wiretaps on Americans--unapologetic, and promising to continue doing it--makes it clear that this is just what the president believes.

Of course, we can feel better with the administration's assurances that there were checks on the president's wiretapping--by the Justice Department. Especially since those assurances come at the same time we have learned that the unanimous career-staff recommendation that the Texas redistricting scheme engineered by Rep. Tom DeLay (R-Texas) that violated the Voting Rights Act was derailed by Justice Department politicos. That followed on the heels of the revelation that the abominable Georgia voter identification law, also challenged by career Justice attorneys as a poll tax, was derailed by some of the same politicos.

We can be even more reassured since this week one of the key politicos in these cases, Hans von Spakovsky, was rewarded with a nomination to the Federal Election Commission. Watching Attorney General Alberto Gonzalez justify the wiretaps by relying on the inherent powers of the commander in chief suggests that the Bush Justice Department is to checks and balances what Paris Hilton is to chastity.

Does Congress have any cojones? Senate Judiciary Chairman Arlen Specter (R-Pa.) has made his outrage known, but the preoccupation of his committee with the Supreme Court confirmation hearings of Judge Samuel Alito may postpone any oversight there. All the other oversight shops shuttered their doors five years ago.

But beyond oversight hearings, Congress should do two other things. First, it should re-pass the Foreign Intelligence Surveillance Act, with its flat language that prohibits what President Bush did without the approval required by the special court, then send it to Bush. If he signs it, that would be a signal he accepts the reality of the law. If he vetoes it, and if that veto is overridden, as it surely would be, it would underscore for him the reality of the rule of law.

Second, Specter and the other members of Judiciary need to add one more important item to the Alito hearings. We need an extended exploration of the judge's views of presidential power. If he is indeed a strict constructionist, he will say that, as the Constitution and the framers make clear, the inherent powers of a commander in chief do not allow presidents to act like kings or despots, whether under the pressure of war or through the claim of national security--especially if they invoke a war, like the war on terror, that will never end. This step is much more likely to happen than the first.

Why, that Norm Ornstein is helping the terrorists! What a weak-kneed, bedwetting liberal appeaser! Ornstein mentioned Bruce Fein, the extremely conservative legal scholar and former Reagan administration DOJ official. Let's see what Fein had to say about the wiretap scandal:

Mr. Bush has adamantly refused to acknowledge any constitutional limitations on his power to wage war indefinitely against international terrorism, other than an unelaborated assertion he is not a dictator. Claims to inherent authority to break and enter homes, to intercept purely domestic communications, or to herd citizens into concentration camps reminiscent of World War II, for example, have not been ruled out if the commander in chief believes the measures would help defeat al Qaeda or sister terrorist threats.

Volumes of war powers nonsense have been assembled to defend Mr. Bush's defiance of the legislative branch and claim of wartime omnipotence so long as terrorism persists, i.e., in perpetuity. Congress should undertake a national inquest into his conduct and claims to determine whether impeachable usurpations are at hand. As Alexander Hamilton explained in Federalist 65, impeachment lies for "abuse or violation of some public trust," misbehaviors that "relate chiefly to injuries done immediately to the society itself."...

President Bush preposterously argues the Sept. 14, 2001, congressional resolution authorizing "all necessary and appropriate force against those nations, organizations or persons [the president] determines" were implicated in the September 11 attacks provided legal sanction for the indefinite NSA eavesdropping outside the aegis of FISA. But the FISA statute expressly limits emergency surveillances of citizens during wartime to 15 days, unless the president obtains congressional approval for an extension...

In an interview with NPR, Fein went even further:

On its face, if President Bush is totally unapologetic and says I continue to maintain that as a war-time President I can do anything I want -- I don't need to consult any other branches -- that is an impeachable offense. It's more dangerous than Clinton's lying under oath because it jeopardizes our democratic dispensation and civil liberties for the ages.

He is joined in his criticism of the program by such well-known leftist kooks as George Will and Sen. Lindsey Graham. Clearly traitors and liberals, the lot of them. The worst thing is that this style of argument is effective in convincing many, perhaps most, Americans.