Inside the Left-Wing Bubble
By Michael Barone
The New York Times' Christmas gift - sorry, holiday gift - to the
nation's political dialogue was its Dec. 16 story reporting that the
National Security Agency has been intercepting telephone conversations
between terrorism suspects abroad and U.S. citizens or legal residents
in the United States.
What the Times didn't bother telling its readers is that this practice
is far from new and is entirely legal. Instead, the unspoken subtext of
the story was that this was likely an illegal and certainly a very scary
invasion of Americans' rights.
Let's put the issue very simply. The president has the power as
commander in chief under the Constitution to intercept and monitor the
communications of America's enemies. Indeed, it would be a very weird
interpretation of the Constitution to say that the commander in chief
could order U.S. forces to kill America's enemies but not to wiretap -
or, more likely these days, electronically intercept - their
communications. Presidents have asserted and exercised this power
repeatedly and consistently over the last quarter-century.
To be sure, federal courts have ruled that the Fourth Amendment's bar of
"unreasonable" searches and seizures limits the president's power to
intercept communications without obtaining a warrant. But that doesn't
apply to foreign intercepts, as the Supreme Court made clear in a 1972
case, writing, "The instant case requires no judgment on the scope of
the president's surveillance power with respect to the activities of
foreign powers, within or without this country." The federal courts of
appeals for the 5th, 3rd, 9th and 4th Circuits, in cases decided in
1970, 1974, 1977 and 1980, took the same view. In 2002, the special
federal court superintending the Foreign Intelligence Surveillance Act
wrote, "The Truong court, as did all the other courts to have decided
the issue, held that the president did have inherent authority to
conduct warrantless searches to obtain foreign intelligence information.
... We take for granted that the president does have that authority and,
assuming that is so, FISA could not encroach on the president's
Warrantless intercepts of the communications of foreign powers were
undertaken as long ago as 1979, by the Carter administration. In 1994,
Bill Clinton's deputy attorney general, Jamie Gorelick, testified to
Congress, "The Department of Justice believes, and the case law
supports, that the president has inherent authority to conduct
warrantless physical searches for foreign intelligence purposes."
In the Dec. 15 Chicago Tribune, John Schmidt, associate attorney general
in the Clinton administration, laid it out cold: "President Bush's
post-Sept. 11, 2001, authorization to the National Security Agency to
carry out electronic surveillance into private phone calls and e-mails
is consistent with court decisions and with the positions of the Justice
Department under prior presidents."
"News stories" in the Times and other newspapers and many national
newscasts have largely ignored this legal record. Instead, they are
tinged with a note of hysteria and the suggestion that fundamental
freedoms have been violated by the NSA intercepts.
Earlier this month, a Newsweek cover story depicted George W. Bush as
living in side a bubble, isolated from knowledge of the real world. Many
of the news stories about the NSA intercepts show that it is mainstream
media that are living inside a bubble, carefully insulating themselves
and their readers and viewers from knowledge of applicable law and
recent historical precedent, determined to pursue an agenda of
undermining the Bush administration regardless of any damage to national
And damage there almost certainly would be were the program to be ended,
as many Democrats and many in the mainstream media would like. Gen.
Michael Hayden, former director of NSA and now deputy national
intelligence director, has come forward to say, "This program has been
successful in detecting and preventing attacks inside the United
The Constitution, Justice Robert Jackson famously wrote, should not be
interpreted in a way that makes it "a suicide pact." The notion that
terrorists' privacy must be respected when they place a cell-phone call
to someone in the United States is in the nature of a suicide pact. The
Fourth Amendment's ban on unreasonable searches and seizures in the
United States should not be stretched into a ban on interceptions of
communications from America's enemies abroad.
The mainstream media, inside their left-wing bubble, evidently thinks
that there is not much in the way of danger. They should take a trip to
Ground Zero, to the Sept. 11 memorial at the Pentagon, to Shanksville,
Pa., where the heroes of United flight 93 prevented the terrorists from
hitting their target in Washington.
December 27, 2005