President Bush And The Constitution

We have heard the mantras, the diatribes and the out-and-out weeping from the Left that the president is "shredding" the Constitution in the wake of the 9/11 attacks. In today's New York Sun, Russ Smith takes those critics to task.

One of the more absurd complaints leveled against President Bush during his tumultuous tenure in office is that, in combating terrorism, he's eviscerated the Constitution. This hysteria is not confined to critics in the blogosphere or strident left-wing magazines such as the Nation but is found, as well, in mass-market newspapers and magazines. A citizen who reads, in a vacuum, editorials and oped columnists in the New York Times, say, might believe that since September 11 America, led by the Bush administration, has become a police state.

The latest round of hyperbolic arguments offered by anti-administration partisans concerns the acquiescence of Congress to put off for six months any revisions to Mr. Bush's allowance of wiretapping of telephone calls that are suspected to contain discussion of possible terrorism.

Newsweek's Jonathan Alter, writing in that magazine's current issue, claims that Mr. Bush has "betrayed his oath to defend the Constitution," and what's worse, from his point of view, is that Democrats were too politically frightened to oppose him.

Hardly anyone would disagree that the 1978 Foreign Intelligence Surveillance Act, which is badly outdated, needs overhaul; it's the extent of the changes that has Democrats in a dither.

Mr. Alter begins his column: "I hate to sound melodramatic about it, but while everyone was at the beach or ‘The Simpsons Movie' on the first weekend of August, the U.S. government shredded the Fourth Amendment to the Constitution, the one requiring court-approved ‘probable cause' before Americans can be searched or spied upon."

Let us take a look at the Fourth Amendment, just for the sake of argument:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

What Mr. Alter is referring to is the second part of the Amendment, also known as the Warrants Clause (bolded above). The Warrants Clause gives a set of basic requirements for search warrants to be issued --that they must be supported by an affidavit that establishes probable cause, and it must describe the places to be searched and items to be seized.

But the question comes down to what does "probable cause" mean? In Brinegar v. United States (1949), the Supreme Court ruled that probable cause was "information that would lead a 'man of reasonable caution' to believe 'that an offense has been or is being committed.'" In Illinois v. Gates (1983), the Court described it as a "fair probability." William J. Stuntz, Professor of Law from Harvard Law School, wrote in the Heritage Guide to the Constitution that "All sides agree that the phrase means more than just a possibility, and less than near-certainty."

So, it is possible that terrorists could be hatching a plot inside or outside the United States? Yes. And are we nearly certain that they are, and may have co-conspirators in the US helping them? No, we are not. It is difficult to tell what precisely their capacities are. Jihadist cells in the US tend to keep a low profile, and the most recent cells broken up were not of trained al-Qaeda fighters. They were of the homegrown variety. The last four major, planned attacks involved those that received no special training, but felt the call to jihad, and prepared themselves for their martyrdom. Those four foiled plans were:

February 21, 2006 -- The Toledo terror cell, where three men had planned to wage jihad against America.

June 23, 2006 -- The Miami plot by seven men planning to bomb the Sears Tower. (FBI agents infiltrated the group posing as al-Qaeda members.)

May 7, 2007 -- The Fort Dix Six plot. Six men planned to attack Ft. Dix in New Jersey. Authorities were tipped off by an observant Circuit City employee burning their video to DVD.

June 3, 2007 -- The JFK plot. Four men planned to blow up the fuel supply at JFK, and ignite the forty ,mile connecting pipeline.

All four incidents were homegrown. A couple of them had US citizens involved in the plot. Again, probable cause plays a vital role in this. Would a warrant have to be obtained? No. All of these plots fall within the confines of probability, but not "near-certainty." Could they have been pulled off? Yes, but it is difficult to say how close they were to execution.

For the regular jihadis, affiliated to al-Qaeda or other terrorist networks, the US government has the right to listen to foreign communications in the interest of national security. The NSA program allowed us to listen in on foreign communications whether they originated here, or abroad. the programs that searched through the numerous conversations looked for keywords, and nothing more. If a keyword popped up, then surveillance was initiated.

As Thomas and I have said before, the federal government does not care if you are swapping recipes with Aunt Mildred, or bragging to your buddy about the wild sex you had the night before, or how you are trying to keep it a secret from your wife that you just bought your sixtieth Five-Iron in three years because she is tired of you blowing money on equipment that does not improve your paltry golf game. The government is interested in stopping attacks against America.

What Mr. Alter also misses (funny how liberals look at the Bill of Rights as the "end-all, be-all" for the Constitution rather than including the Articles themselves) is that under Article II, Section 2, the president is the "commander-in-chief" of the United States military. The NSA's mandate is foreign and domestic intelligence that it regularly shares with the military. Its director has never been a civilian. It makes sense to say that the NSA falls under the purview of the president's scope as commander-in-chief. The mandate he gave them in the weeks following 9/11 is perfectly legal, under the explanation that such surveillance is in the national interest for maintaining national security.

Mr. Smith goes on in his piece to point out that past presidents (namely Wilson and FDR) went beyond even the scope President Bush has. Wilson asked and was successful in getting Congress to pass the Sedition Act of 1918 which made it illegal to "say, write, or print anything that was deemed 'disloyal, profane, scurrilous, or abusive' about the government."

FDR, he points out, ordered the internment of 120,000 Japanese Americans (the majority of which WERE US citizens), and there was not even a whimper from the civil libertarians of the time. Additionally, communications from overseas were tightly monitored, as was mail from soldiers serving. All in the effort to ensure that we did not tip our hand to our enemies about where the troops were and what we were planning. (I would suggest Mr. Alter to a bit of checking on this fact. My grandfather served in World War II, and when he came home, his mother showed him the letters he had sent, complete with omissions and redactions carried out by the US government.)

The fact that Mr. Alter is misreporting the scope of the surveillance we are conducting is only part of the issue. He breathlessly attaches himself to a meme that has been running around since the New York Times broke the story in December of 2005 that the US government is illegally surveilling its citizens. It is not. He also levies an indictment against the government for "expanding" these powers with the new FISA revisions. They are not expanded. They are updated and streamlined so we have a better capability of preventing our enemies from striking us.

Reporters like Mr. alter do no service to the nation for hyperventilating over issues that are, in essence, innocuous. We have lost no civil liberties, and we will not provided that the government has enough common sense to step back, and assure itself that it is within the scope of its power. Mr. Alter also forgets that had any of the new FISA amendments violated our rights, the Supreme Court could have stepped in, and ordered such additions as unconstitutional; it is withing their purview of "judicial review."

Marcie