The Paranoid Style in American Liberalism
The Paranoid Style in American Liberalism 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...
...The consequences of the FISA Court's approach to the Wall between intelligence gathering and law enforcement before September 11 were extensive," the Joint Inquiry explained...
...On Monday, December 19, General Michael Hayden, former director of the National Security Agency and now deputy director of national intelligence, briefed journalists...
...Set aside, for the moment, all the broad and complicated questions of law at issue here, and consider just the factual record as it's been revealed in any number of authoritative, after-the-disaster investigations...
...And why would the president think such unilateral domestic spying necessary to begin with...
...The ranking Democrat on that committee, Joseph Biden, confidently stated that the president's claims were "bizarre" and that "aggrandizement of power" was probably the primary reason for the president's actions, since "there was no need to do any of this...
...This is the fever swamp into which American liberalism is on the verge of descending...
...Hayden's press briefing, the ranking Democrat on the House Judiciary Committee blathered on about "the Constitution in crisis" and "impeachable conduct...
...What's more, NSA adopted this unfortunate policy "even though the collection of such communications is within its mission," even though "a significant portion of the communications collected by NSA" has always involved "U.S...
...persons," and even though "the NSA and the FBI have the authority, in certain circumstances, to intercept . . . communications that have one communicant in the United States and one in a foreign country...
...I'm sure there are many well-meaning Americans who agree with their president's explanation that it's all a necessary evil (and that patriotic citizens will not be spied on unless they dial up Osama bin Laden...
...Official Washington is appalled...
...Because that would have been insane, that's why...
...It would be good to have a responsible opposition party in the United States today...
...And in late 2000, after federal prosecutors discovered a series of legally inconsequential errors and omissions in certain al Qaeda-related surveillance applications the FISA court had previously approved, the court's infamously prickly presiding judge, Royce Lamberth, appears to have had a temper tantrum ferocious enough to all but shut down the Justice Department's terrorism wiretapping program...
...Too bad we have neither...
...According to the December 2002 report of the House and Senate intelligence committees' Joint Inquiry into the Terrorist Attacks of September 11, 2001, for one, the FISA system as a whole— and the FISA court in particular—went seriously off the rails sometime around 1995...
...So we are really to believe that President Bush just sat around after 9/11 thinking, "How can I aggrandize my powers...
...She posted an article Wednesday—also after Gen...
...Hayden's press briefing—on Newsweek's website ruminating on "the parallels" between Bush's defense of his "spying program" and, yes, "South Africa's apartheid regime...
...Democratic National Committee chairman Howard Dean reports that the mere contemplation of such a possibility is "painful" to him...
...But the spokesmen for contemporary liberalism didn't pause to even ask these questions...
...It's so nice," confided my neighbor, "not to open the papers and read all that bad news...
...that's happened fewer than a half-dozen times in nearly 30 years...
...Their question persists: Why on earth—in the immediate aftermath of 9/11, when our need for meaningful signals intelligence was presumably at its zenith—would the president not have turned first, for assistance, to the Foreign Intelligence Surveillance Court...
...Alas, "NSA did not use the FISA Court technique" against our nation's enemies in the old days, "precisely because" of its allergy to domestic surveillance...
...It is the threat to civil liberties from George W. Bush that is the real danger...
...What is one to say about these media-Democratic spokesmen for contemporary American liberalism...
...Was the president to ignore the obvious incapacity of any court, operating under any intelligible legal standard, to judge surveillance decisions involving the sweeping of massive numbers of cell phones and emails by high-speed computers in order even to know where to focus resources...
...Yup...
...Sounds like it would have been a really, really good idea for NSA to have gone ahead and done this stuff back before 9/11...
...He is bearing this pain, however—he and everyone else in the president's metastasizing army of critics...
...When necessary, and by statute, the government is allowed to seek and secure FISA court approval for relevant wiretaps up to 72 hours afi^^ those wiretaps are turned on...
...GEN...
...Wilham Kristol Disorder in the Court Since shortly after September 11, 2001—and under the terms of a formal order signed by the president of the United States sometime early the following year—the Pentagon's giant signals-intelligence division, the National Security Agency, has monitored "the international telephone calls and international email messages of hundreds, perhaps thousands, of people inside the United States without warrants...
...It would be good to have a serious mainstream media...
...Why couldn't the Justice Department first seek permission from the special judicial panel established for precisely such circumstances by the Foreign Intelligence Surveillance Act of 1978...
...Non-Justice intelligence agencies quailed before Judge Lamberth, too, it should be noted...
...HAYDEN: This program has been successful in detecting and preventing attacks inside the United States...
...Absent specific, prior authorization from the FISA court, federal al Qaeda investigators were formally prohibited from sharing surveillance-derived intelligence information about terrorism suspects and plots with their law enforcement counterparts...
...persons or contain[ed] information about U.S...
...Consider Arlene Getz, senior editorial manager at Newsweek.com...
...Mind you: It's not that anybody's especially eager to conclude that George W. Bush is a yahoo Texas cowboy engaged in sweeping, Big Brother-like invasions of American privacy simply because his coterie of whack-job Federalist Society lawyers tell him that presidents should do whatever the hell they want, and this would be an excellent way to prove it...
...Back in the 1980s, when I was living in Johannesburg and reporting on apartheid South Africa, a white neighbor proffered a tasteless confession...
...I thought about that neighbor this week, as reports dribbled out about President George W. Bush's sanctioning of warrantless eavesdropping on American conversations...
...No matter that government hit squads were killing political opponents...
...The back-and-forth included this exchange: REPORTER: Have you identified armed enemy combatants, through this program, in the United States...
...NSA "adopted a policy that avoided intercepting communications between individuals in the United States and foreign countries...
...It used to be, not so long ago, that NSA's pre-9/11 timidity about such eavesdropping was universally considered a terrible mistake...
...And by the time, a few years later, that Osama bin Laden had finally become an official counterterrorism priority, this FISA court-enforced "wall" had already crippled the government's al Qaeda monitoring efforts...
...No matter that Pretoria was detaining tens of thousands of people without real evidence of wrongdoing...
...No matter that many of them, including children, were being tortured—sometimes to death...
...Was the president to ignore the evident fact that FISA's procedures and strictures were simply incompatible with dealing with the al Qaeda threat in an expeditious manner...
...A false impression began mysteriously to take hold throughout the government that the FISA statute, in combination with the Fourth Amendment, erected an almost impermeable barrier between intelligence agents and law enforcement personnel where electronic eavesdropping was concerned...
...No matter that police were shooting into crowds of black civilians protesting against their disenfranchisement...
...As Gary Schmitt and David Tell explain elsewhere in this issue, FISA was broken well before 9/11...
...Some have already descended...
...It seems there's long been something called "the FISA Court technique," a category of electronic surveillance distinguishable from ordinary, FISA-regulated eavesdropping by its higher probability of capturing "communications between individuals in the United States and foreign countries"— but meeting the "approval of the FISA Court" just the same...
...You would think that a statement like this, by a man in his position, would at least slow down the glib assertions of politicians, op-ed writers, and journalists that there was no conceivable reason for President Bush to bypass the Foreign Intelligence Surveillance Act (FISA) court...
...Hayden—and his hundreds of nonpolitical subordinates—cheerfully agreed to an obviously crazy, bizarre, and unnecessary project of "domestic spying...
...Isn't this sort of thing supposed to be illegal—unconstitutional, even...
...But the nasty echoes of apartheid South Africa should at least give them pause...
...The agency's "cautious approach to any collection of intelligence relating to activities in the United States," the Joint Inquiry concluded, helped blind it to the nature of al Qaeda's threat...
...She was "quite relieved," she told me, that new media restrictions prohibited our reporting on government repression...
...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...
...Or that Gen...
...That they have embarrassed and discredited themselves...
...The day after Gen...
...So reported the New York Times more than a week ago...
...That they cannot be taken seriously as critics...
...As we say, Washington is aghast...
...HAYDEN: I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available...
...One such collection capability" mentioned in a heavily redacted section of the Joint Inquiry report sounds like it might be especially relevant to the current controversy over President Bush's Gestapo-like tendencies...
...Not one...
...Many FISA surveillances of suspected al Qaeda agents expired because [Justice officials] were not willing to apply for application renewals when they were not completely confident of their accuracy...
...Was the president, in the wake of 9/11, and with the threat of imminent new attacks, really supposed to sit on his hands and gamble that Congress might figure out a way to fix FISA, if it could even be fixed...
...That's not it at all...
...And "thus, a gap developed between the level of coverage of communications between the United States and foreign countries that was technically and legally available to the Intelligence Community and the actual use of that surveillance capability...
...It's not as though this so-called FISA court was likely to turn them down, after all...
...And it's not as though the court's rules weren't flexible enough to accommodate the occasional intelligence-community emergency, either...
...So why is it such an atrocity that President Bush has them doing it now...
...REPORTER: General Hayden, I know you're not going to talk about specifics about that, and you say it's been successful...
...counterterrorism requirements included a program of domestic surveillance beyond what FISA authorized, how come he didn't just ask Congress to amend that law—instead of granting himself apparent permission to violate its very essence...
...Besides which, if the president really was convinced that U.S...
...David Tell, for the Editors...
...Barbara Boxer, a Democrat on the Senate Foreign Relations Committee, asserted there was "no excuse" for the president's actions...
...The questions answer themselves...
...GEN...
...But would it have been as successful—can you unequivocally say that something has been stopped or there was an imminent attack or you got information through this that you could not have gotten through going to the court...
...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...
...Now, General Hayden is by all accounts a serious, experienced, nonpolitical military officer...
...And new applications were not forthcoming, the result being that, at least by the reckoning of one FBI manager who testified before the intelligence committees, "no FISA orders targeted against al Qaeda existed in 2001" at all...
...First the Bush administration will listen in to international communications of a few hundred people in America who seem to have been in touch with terrorists abroad . . . and next thing you know, government hit squads will be killing George W. Bush's political opponents...
...The National Security Agency, for example, "began to indicate on all reports of terrorism-related information that the content could not be shared with law enforcement personnel without FISA Court approval...
Vol. 11 • January 2006 • No. 16
