Libertarian Librarian

Jonathan Rauch states that, "One begins to wonder, indeed, if [Bush's] administration has lost sight of the distinction, especially when Vice President Cheney defends warrantless surveillance by saying, 'Either we're serious about fighting the war on terror, or we're not.'" Of course, he leaves out the following four paragraphs that came prior to that statement in the speech given by the Vice President from which Rauch's quote was pulled.

"Another vital step the President took in the days following 9/11 was to authorize the National Security Agency to intercept a certain category of terrorist-linked international communications. There are no communications more important to the safety of the United States than those related to al Qaeda that have one end in the United States. If we'd been able to do this before 9/11, we might have been able to pick up on two hijackers who subsequently flew a jet into the Pentagon. They were in the United States, communicating with al Qaeda associates overseas. But we did not know they were here plotting until it was too late.

"If you recall, the report of the 9/11 Commission focused criticism on our inability to cover links between terrorists at home and terrorists abroad. The authorization the President made after September 11th helped address that problem in a manner that is fully consistent with the constitutional responsibilities and legal authority of the President and with the civil liberties of the American people. The activities conducted under this authorization have helped to detect and prevent possible terrorist attacks against the American people. As such, this program is critical to the national security of the United States.

"It's important to note that leaders of Congress have been briefed more than a dozen times on the President's authorization, and on activities conducted under it. I have personally presided over most of those briefings. In addition, the entire program undergoes a thorough review within the executive branch approximately every 45 days. After each review, the President determines whether to reauthorize the program. He has done so more than 30 times since September 11th -- and he has indicated his intent to do so as long as our nation faces a continuing threat from al Qaeda and similar organizations.

"The existence of this program was highly classified, and information about it was improperly provided to the news media, to the clear detriment of our national security. There will now be a spirited debate about whether this program is necessary and appropriate, and the position of our administration will remain clear and consistent. Number one, these actions taken are necessary. Number two, these actions are totally appropriate and within the President's authority under the Constitution and laws of the country. Number three, this wartime measure is limited in scope to surveillance associated with terrorists; it is carefully conducted; and the information obtained is used strictly for national security purposes. And number four, the civil liberties of the American people are unimpeded by these actions."

Vice President Dick Cheney, Speech to the Heritage Foundation, 4 January 2006

By reading the above, one can see that the Vice President didn't simply try to defend the classified NSA program with the one sentence quoted by Rauch.

Rauch also states that, "[Bush] also claims the power to eavesdrop without warrants on Americans in the United States, in seeming violation of the 1978 Foreign Intelligence Surveillance Act, known as FISA." He doesn't state how the classified NSA program violated FISA, but Asst. Atty. Gen. Moschella did touch on the propriety of the classified NSA program as it relates to FISA. I've included two paragraphs from Moschella's letter to four ranking members of the Senate and House intelligence committees below.

"Under Article II of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty. See, e.g., Prize Cases, 67 U.S. (2 Black) 635, 668 (1 863) (stressing that if the Nation is invaded, "the President is not only authorized but hound to resist by force . . . . without waiting for any special legislative authority"); Campbell v. Clinton, 203 F.3d 19,27 (D.C. Cir. 2000) (Silberman, J., concurring) ("[Tlhe Prize Cases . . . stand for the proposition that the President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected."); id. at 40 (Tatel, J., concurring). The Congress recognized this constitutional authority in the preamble to the Authorization for the Use of Military Force ("AUMF") of September 18, 2001, 115 Stat. 224 (2001) ("[Tlhe President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."), and in the War Powers Resolution, see 50 U.S.C. 8 1541(c) ("The constitutional powers of the President as Commander in Chief to introduce United States Armed Forces into hostilities[] . . . [extend to] a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.").

"This constitutional authority includes the authority to order warrantless foreign intelligence surveillance within the United States, as all federal appellate courts, including at least four circuits, to have addressed the issue have concluded. See, e.g., In re Sealed Case, 310 F.3d 7 17, 742 (FISA Ct. of Review 2002) ("[AIII the other courts to have decided the issue [have] 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. . . ."). The Supreme Court has said that warrants are generally required in the context of purely domestic threats. hut it expressly distinguished, foreign threats. See United States v. United States District Court, 407 U.S. 297,308 (1972). As Justice Byron White recognized almost 40 years ago, Presidents have long exercised the authority to conduct warrantless surveillance for national security purposes, and a warrant is unnecessary "if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable." Katz v. United States, 389 U.S. 347, 363-64 (1967) (White, J., concurring)."

Assistant Attorney General William E. Moschella, Letter to Sen. Pat Roberts (Chairman of Senate Select Committee on Intelligence), Sen. John D. Rockefeller, IV (Vice Chairman of Senate Select Committee on Intelligence), Rep. Peter Hoekstra (Chairman of Permanent Select Committee on Intelligence), and Rep. Jane Harman (Ranking Minority Member of Permanent Select Committee on Intelligence), 22 December 2005

Interestingly enough, considering that the title of the article indicates the opinion that Bush's actions are endangering the war on terror, Rauch doesn't once touch on the concept of the leakers unilaterally deciding that the classified information that they have access to must be turned over to the press in the best interest of the country. While Rauch suggests that the classified NSA program is in "seeming violation" of FISA, he doesn't focus a sentence on the fact that this classified program wouldn't be currently debated if nearly a dozen individuals hadn't actually violated the law by releasing information that was considered classified and critical to national security.

If the administration wasn't doing what it is doing in order to connect-the-dots prior to another attack on the U.S., and if the U.S. were attacked again under Bush's watch, I truly doubt that writers such as Rauch would compare Bush to Madison while looking at the rubble and body-count. Rather, I think that Rauch (and others like him) would ask why more wasn't done to track the terrorists and those who they were in contact with here in the U.S.