Saturday, December 17, 2005

Prof. Bainbridge and the War on Terror

UPDATED 12/18/05

Pseudo-conservative Stephen Bainbridge -- last remarked upon here -- has once again let down the side. Apropos the leaked story about the use of the NSA to intercept domestic communications, Bainbridge writes:
Okay, the NY Times published a leak:

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials. Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said.

Powerline thinks: "The intelligence officials who leaked to the Times should be identified, criminally prosecuted, and sent to prison." Michelle Malkin opines: "The real headline news is not that President Bush took extraordinary measures to protect Americans in the aftermath of the Sept. 11 terrorist attacks, but that the blabbermouths at the Times chose to disclose classified information in a pathetically obvious bid to move the Iraqi elections off the front pages." Hugh Hewitt asks: "Perhaps Special Prosecutor Fitzgerald's writ could be expanded?"

Leaks are a fact of life. Heck, after the battle of Midway, the Chicago Tribune publishes a story announcing to the world that the US Navy had broken Japanese codes, which makes this leak look like small beer. It's disingenuous to be shocked about such things. . . .

The word isn't "shocked," it's "outraged." The leakers and the Times have deliberately exposed a practice that probably has saved the lives of many Americans, both at home and abroad. Leaks may be a fact of life, and so is murder, but that doesn't make either of them legal or right. Bainbridge has lost his grip on logic.

And there's more. He goes on to whine about "Coercive interrogations. A gulag of secret prisons." He's referring, of course, to the alleged "torture" of unlawful combatants and those formerly "secret" prisons that were exposed recently, also by unlawful leaks to the press.

Tom Smith of The Right Coast comments on the affray:
[H]ere's my guess of what's going on. NSA gets the email and phone lists from some big Al Qaeda guy, who had to be water-boarded to hand them over, but that's another story, and they want to monitor traffic to and from those addresses. Sounds sensible if you want to, say, prevent the release of weaponized death virus 2000 in the land of the free. But wait. Why not just get a warrant? I suspect the reason might be that there are many phone and email addresses you want to monitor. In fact, so many you cannot really even use humans to listen to them. You use classified technology to sift through the volumes of chatter and listen for suspicious patterns, sort of like Gmail searches your emails to see if you are going to Bermuda or interested in refinancing your boat. But it is not really practical to get the Foreign Intelligence court to issue warrants for all those targets. So it is done under a Presidential order instead.

There is probably more involved, but for my money, I am glad the NSA is doing this. I think it is shocking that NSA officials leaked the program to the Times. There really should be an investigation and maybe even a special prosecutor. I mean, really! This is highly sensitive stuff, as sensitive as it gets. Nor is there any particular reason to think any of what NSA did was illegal. We are not talking rogue agents here, but a Presidential finding that sounds like it was thoroughly lawyered up. And noticed to appropriate people in Congress, who knew enough, even in their ethically retarded state, to keep it secret. But no, that's not enough for the Times. Do they think it's illegal? How would they know? They just know they don't like it, so they are going to blow the whole operation sky high. You can bet that all across America, Europe and the Middle East, Al Qaeda is reworking its communications protocols, opting for higher levels of encryption, moving potentially compromised agents around, replacing cell phone chips, moving physical addresses . . . But it's OK, because the Times has weighed the issue and decided the harm to our national security is outweighed by the extra protection we get for our civil liberties, and they are the experts at making this kind of decision. That is why we elected them, or why they elected themselves.

And of course, the Times publishes the story even though federal officials tell them it will harm national security, and they also time it to have maxium impact on the PATRIOT act debate in the Senate. Is the Times accountable to anybody? Does anybody get to ask them about the ethics of timing publication so as to impact political decisions in Washington? I realize it happens all the time, but jeez, this is an extreme example of it. There really should be an investigation this time. The anti-Bush press and the enemies of the President in the intelligence community need to know they can't just jeopardize national security by divulging highly sensitive and classified information, just because they sanctify themselves with what they see as high political motives. My bet is that the heros at the Times, if they realized they were not immune from the consequences of breaking the law, assuming, as seems likely, that laws were broken in divulging this stuff, would suddenly become much more circumspect. For really, does anyone really think that if the actions of the Times make it much harder to find out what the cell is doing in San Diego, Chicago or Atlanta, and as a result people die, that the New York Times gives a shit? Even if it happened to other New Yorkers, they would not give a shit, though the names and faces would make nice fodder for a feature of "The Costs of the War on Terror." I don't think any given reporter would care if another given reporter ended up being the one who had to jump burning from the building. A lot of people need some serious sorting out on this one.
Has anything illegal happened? I don't think so. Aggressive interrogation is limited to unlawful combatants. "Secret" prisons are nothing more than detention centers for unlawful combatants, who have to be held somewhere other than Gitmo if they're to be treated properly as unlawful combatants who really have no right of access to U.S. courts. As for the NSA's eavesdropping, Mark Levin writes that
[t]he Foreign Intelligence Security Act permits the government to monitor foreign communications, even if they are with U.S. citizens -- 50 USC 1801, et seq. A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power.

The reason the President probably had to sign an executive order is that the Justice Department office that processes FISA requests, the Office of Intelligence Policy and Review (OIPR), can take over 6 months to get a standard FISA request approved. It can become extremely bureaucratic, depending on who is handling the request. His executive order is not contrary to FISA if he believed, as he clearly did, that he needed to act quickly. The president has constitutional powers, too.
Undeterred by such considerations, Bainbridge plows ahead:

We're supposed to be better than this.

"I believe that there are more instances of the abridgment of the freedom of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations." - James Madison

"The history of liberty is a history of the limitations of governmental power, not the increase of it." - Woodrow Wilson

"America is great because she is good, and if America ever ceases to be good, America will cease to be great."

Some will say that we need to make trade-offs between liberty and security. But liberty has a price and taking risks is the price we all have to pay if liberty is to be preserved.

"Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me, give me liberty or give me death!" - Patrick Henry

Of the Founders who pledged "their lives, their fortunes and their sacred honor" as signers to the Declaration of Independence, five were captured as traitors and tortured before they died; twelve had their homes ransacked and burned; two lost their sons in the Revolutionary War; another had two sons captured; and nine died from wounds or the hardship of the war. But too many want to trade their sacrifices away for a mess of security pottage.

We're supposed to be better than what? Better than the French at surrendering our lives, liberty, and happiness? Bainbridge chooses to forget that the Founders -- and the Framers of the Constitution -- risked their lives, fortunes, and families so that Americans could enjoy the blessings of liberty. To do that, Americans must be able to defend themselves from predators of the kind against whom our eavesdropping, interrogation, and imprisonment are directed. A main objective of the Framers was, after all, to "provide for the common defence." Bainbridge and his ilk have lost sight of that objective. Tom Smith, by contrast, hasn't lost sight of the objective -- as he proves once again in this eloquent post.

UPDATE: Captain Ed has the facts about President Bush's legal authorization of NSA intercepts within the U.S.

Related posts:

Prof. Bainbridge Flunks (11/15/05)
War, Self-Defense, and Civil Liberties (a collection of posts)