Senatorial Silliness
By Joseph Knippenberg

Friends, I read these transcripts so you don’t have to. Believe me, I’m performing a selfless public service.

 

Today, your humble public servant worked his way through the record of the Senate Judiciary Committee’s interrogation of Attorney General Alberto Gonzalez.

 

You may be familiar with the Administration’s legal and Constitutional defense of its limited—I repeat, limited—warrantless surveillance program, but in case you’re not, let me summarize it briefly. In undertaking the surveillance of communications between suspected al-Qaeda operatives outside the U.S. and persons within our borders, the President relies upon the following authorities: his inherent executive power, which is extensive, albeit not unlimited, when it comes to protecting national security from credible threats; and the “Authorization to Use Military Force,” passed by Congress in the wake of the 9/11 attacks. If the President is authorized to shoot at the bad guys, he’s also authorized, by reasonable implication, to discover who and where they are.

 

Properly understood, the two purported restrictions on his authority—the 1978 Foreign Intelligence Surveillance Act and the Fourth Amendment prohibition against unreasonable searches and seizures—do not actually do so. As the Attorney General contends in his opening statement, FISA “prohibits persons from intentionally ‘engag[ing]…in electronic surveillance under color of law except as authorized by statute.’” The AUMF is such a statute, permitting, if need be, warrantless surveillance. Furthermore, a limited program of warrantless surveillance may be an effective—indeed, the only effective—means of identifying those properly called evildoers (or perhaps potential evildoers, if they belong to a sleeper cell). As such, the program amounts to a reasonable, as opposed to unreasonable, method of search and seizure; it passes the Fourth Amendment test.

 

Not everyone sitting across from the Attorney General found these arguments persuasive, beginning with Arlen Specter, who wondered why the Bush Administration couldn’t just submit its program to the Foreign Intelligence Surveillance Court for its evaluation. Mr. Gonzales was too polite to remind the Senator of what my students learn early in my Con Law class: courts don’t issue advisory opinions. He was also too polite to offer the tart response suggested by National Review’s Andy McCarthy:

 

It is the President, not the Judiciary, which is supreme in matters of foreign intelligence collection and national security. It is, moreover, wartime. It is the President in our system who makes the ultimate judgment about what must be done to protect the public from foreign threats—even in peacetime. It would not be proper Constitutionally for the President to delegate that prerogative to another branch. Thus, if the FISA Court reviews the NSA program and opines against it, what is the President supposed to do? Discontinue a program that provides an early warning system against what could be a devastating attack? That is a call we elected him to make—the FISA court has no place making such judgments.

 

Then there was Lindsay Graham, who didn’t think he had warrantless surveillance in mind when he voted to authorize the use of force against al-Qaeda and its supporters. The Attorney General pointed out on numerous occasions that in Hamdi the plurality opinion held that the AUMF permitted the detention of U.S. citizens captured as enemy combatants, despite the fact that Congress hadn’t explicitly contemplated that when it passed the resolution. Intelligence gathering is as “fundamental and accepted an incident to war” as is detaining people captured on the battlefield. Intelligence helps us aim before we fire.

 

Because I’m nothing if not a bipartisan basher, let me turn my attention to the Democrats, who participated fully in the day’s silliness.

 

There were, to begin with, repeated insinuations that the President and the Attorney General had lied to the Senate and to the people about the nature and scope of our intelligence-gathering efforts. Senator Leahy asserted that he was thankful for the New York Times’s revelations—this despite the fact that those revelations apparently seriously compromised those efforts. Must the Bush Administration be perfectly transparent, not only to some of our legislators (not including, to his apparent chagrin, Senator Leahy), but also to our enemies? Must it accept the premise, offered most forcefully by Senator Feingold, that its program of surveillance contravened the law?

 

And then there’s the slippery slope, mentioned by Senators Leahy, Kennedy, Feinstein, and Schumer. Are we opening mail, undertaking purely domestic warrantless surveillance, and otherwise breaking the law? Gonzales quite properly asserted both that the Administration was not breaking the law, as he had explained it, and that he was focused on the issue on which the Committee had insisted on holding a hearing. It makes no sense to discuss actions the Administration isn’t taking, which only plays into the hands of its critics. It also would be irresponsible to reveal and defend other secret national security programs. Grown-ups understand this, even if senators pretend not to.

 

Senator Durbin, at least, manages to find the bottom of the slippery slope: “Ordinary Americans wondering if their telephone calls, if their e-mails overseas have been wiretapped. And there is no safeguard for their liberty and freedom.” We’ve resurrected the shades of Johnson, Nixon, and J. Edgar Hoover, which is pretty impressive conjuring.

 

Finally, there’s Joe Biden, who wonders whether any criminal referrals have resulted from the NSA program. If we were discussing a simple law enforcement program before 9/11, this might have been a perfectly reasonable question. But we’re not and it’s not. Like many of his colleagues, Senator Biden seems to be living in the past. Just as they worry about lists of enemies, he worries about developing unassailable legal cases.

 

What no Bush Administration critic has yet done is propose to cut off funding for or expressly to deny legal authority for this program. Selected Democrats and Republicans have known about and not objected to this program since its inception, although at any time anyone could have threatened to use Congress’s undenied and undeniable powers to legislate and appropriate. Now, of course, it’s easier to carp, complain, and accuse the President and his subordinates of criminal wrongdoing. That gets attention and potentially puts the Administration on the defensive. If Congress actually had to vote on something, the President’s critics might, as seems likely, lose. Even worse (for us, but also for them), they might win and then have to share the blame, should there be another terrorist attack on U.S. soil.

 

I’ll settle for the silliness. Since the damage to the program has already been done by the Times’s revelations, the posturing in the Senate Judiciary Committee does no real harm, so long as the President has able and careful advocates like the Attorney General and allies like Orrin Hatch. In fact, as in the case of the confirmation hearings, it might do some good by highlighting the fundamental unseriousness of the President’s critics.

 

 

Joseph Knippenberg is a professor of politics and associate provost for student achievement at Oglethorpe University in Atlanta. He is a weekly columnist for The American Enterprise Online and a contributing blogger at No Left Turns.