Much ado about nothing

The people have more sense than our officials

By Dick Tunison

It’s hard for us common folk to find our way through the legal morass that’s been thrown up around the question of government wiretapping. There are impressive legal positions now being presented on both sides of the issue of whether the president has correctly used his powers. One thing is certain however, lawyers seem to be able to find two sides to every judicial question. That’s why we have plaintiff and defense lawyers. Each side believes it has a corner on the law, but then it’s the judge or the jury that finally decides, not the advocates themselves.

When I was a working stiff, my company had just under a hundred lawyers in its legal department who served executives and senior managers. On average, The Company was sued about once a day by somebody who felt wronged. The interesting thing about the situation was that managers only sought legal advice from their attorneys. The lawyers never made the management decision. In the final analysis, it was always the boss’s choice.

Here we are in a situation where the lawyers don’t all agree on the meaning of the law. They vocally expound on the president’s power, or lack thereof, to conduct secret surveillances for the purpose of gaining vital intelligence information. The law at issue is called the Foreign Intelligence Surveillance Act (FISA) and is reported to have grown out of misuse of governmental agencies for the purpose of getting dirt on political enemies of the Nixon administration. FISA was intended to protect the innocent as much as facilitate intelligence gathering. But the law still leaves open a means by which the president can conduct warrant-approved surveillance under certain circumstances.

Even though FISA covers only a limited number of intelligence-gathering situations, no administration since the enactment of the law in 1978 has recognized it as a binding limit on executive power, and they have acted accordingly. When the law was passed, Griffin Bell, Jimmy Carter’s Attorney General, said that “it does not take away the power of the President under the Constitution.” Deputy Attorney General Jamie Gorelick (Remember, she was the one who constructed the “wall between the CIA and the FBI.”) claimed in 1994 an “inherent authority” (within the powers of the presidency) not just to warrantless electronic surveillance but to warrantless physical searches as well.

Yes, there are dyed-in-the-wool libertarians who are finding fault with surveillance of citizens on principle. But many of those who are now opposing the president’s actions argue that Bush has overreached and the legislative branch has not been kept informed of these undercover activities. Thus, we have a turf issue coming to the surface too.

Last Sunday I watched Rep. Jane Harmon (D-CA), the Ranking Member of the Congressional Intelligence Committee, being interviewed on one of the morning talk shows. She acknowledged her presence in meetings where representatives of the administration provided updates of electronic wiretapping and surveillance activities on the part of the government. But, she would not even say how many briefing meetings she had attended so as not to break security rules. In fact, Rep. Harmon refused to answer a number of questions on the same grounds. So, democrat claims of their not having been informed about these activities seem a little shaky.

It was only after the New York Times exposé that democrat leaders have begun to rage about infringement of civil rights. No matter those similar activities, operating under FISA rules had been set in motion at times dating back to the Carter administration. This rage seems to me to be just one more arrow aimed at Bush by diehards who will never accept him as our legitimate president. It also suggests they do not see much urgency in keeping the nation safe. And that, after all, is a sworn responsibility of every president.

Senator Barbara Boxer (D-CA) doesn’t seem to get it. Last month she sent a letter to a group of hand-picked legal scholars asking their opinion as to whether the Bush NSA program was an impeachable offense. It’s clear where she’s headed. Her interest is getting the president for something – anything. To my knowledge she has not yet asked how information about such a secret program, whose secrecy was so great that Rep. Jane Harmon would not even tell how many briefings she had on the subject, got to the press. Is Boxer, and others, at all interested in who leaked secret information to the press? They surely were when the question concerned Valerie Plame.

The most frequent answer we get is that somebody at NSA was bold enough to come forward. James Risen, the New York Times investigative reporter and author of the new Book, State of War that portends to tell all about Bush’s misdeeds, says the source was a true whistleblower. Well, friends, a whistleblower does not reveal details about national security matters to a hungry press. Past experience tells us that journalists are losing their powers of judgment about what might be detrimental to the national interests. If there were legitimate criticisms the whistleblower should have taken his concerns to the appropriate congressional oversight committee.

According to a Rasmussen poll released on December 28, sixty-four percent (64%) of Americans believe the National Security Agency (NSA) should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States. Only one-third of the respondents believe President Bush broke the law by pursuing electronic eavesdropping. Nearly the same amount thinks our legal system worries too much about individual liberties and not enough about national security. Another 27% say the current balance of intelligence gathering as opposed to protecting our civil liberties is about right.

What does all this boil down to? Some members of the senate and house intelligence committees may end up with egg on their faces if it turns out they’ve known about the electronic wiretapping program all along while claiming they’ve been left in the dark. Lawyers will continue to be lawyers choosing a side they feel more comfortable supporting. But the American public is going to need to be shown excessive dangers to its privacy and civil rights before it goes nuts over the matter. It seems to me most of us are genuinely concerned about national security as the primary issue.