The clamor over domestic wiretapping grows by the day, with a few Democrats now openly talking about impeachment (or what Dan Froomkin demurely calls the “I-word”) and many, though not all, Republicans becoming increasingly defensive about the need for the secret program. Bloggers have not been silent on this issue. And where the Bush administration has not been completely straightforward about why warrantless wiretapping is necessary, the on-line specularati has filled in.
Starting of course with Mickey Kaus who, characteristically, breaks it down for us: “The administration bypassed the special FISA court, not because it would somehow have been too time consuming to obtain warrants, but because warrants wouldn’t have been granted under the “probable cause” standard.” The reason they would have been denied is that, “the wiretaps were quasi-data-mining wiretaps, trolling phone calls of 10% likely suspects for tipoff phrases like ‘Brooklyn Bridge.’” Though Kaus thinks that’s “probably illegal,” the solution, to make it explicitly legal, would be to “lower the standard for search warrants, allow mass warrants for whole bundles of phone calls, while retaining some judicial supervision.”
The blogger who runs Political Waves came to the same conclusion, that Bush went above FISA’s head because he had to, because they “wanted to set up an electronic dragnet, to go on a fishing expedition — unmonitored, unrestricted — one that those persnickety judges would have found unacceptable.” But unlike Kaus, who thinks the rules need to be adjusted to fit the new reality, this blogger believes we need to take another look at the reality. “For years we have grossly overplayed the challenge that global terrorism poses to our military, and have underplayed the challenge that it poses to our moral and spiritual resources,” he writes. “The war on terror can’t be won simply with bunker-busting bombs. Rather, any military success must be fortified by a steadfast adherence to democratic principles.”
Christopher at Live Journal also tries to approach the story with a bit of nuance, believing that, “quite possibly, the President truly believes that what he is doing is for the good of the American people” but that this, “utterly fails to excuse his violations of the rules.” He asks himself, “is it better to err on the side of staying in the rules rather than breaking them at a whim? Usually. Does it set Yet Another Dangerous Bush Administration Precedent that can be abused even MORE by a later administration? Absolutely.”
Over at Powerline, John Hinderaker takes the New York Times to task for giving the impression that the wiretapping is illegal when there are court precedents, which he points to, that make it constitutionally permissible. And he gets Eric Lichtblau, co-author of the Times piece to respond, however tersely (we are not sure if these are just excerpts of the Lichtblau’s responses). In the end, Hinderaker’s main problem has to do with the tone he believes Lichtblau uses in the article, one that throws more doubt on the legality of the wiretapping than he believes exists.
“Here’s my problem with your coverage,” Hinderaker writes. “As a legal matter, there isn’t any debate. The authorities are all on one side; they agree that warrantless surveillance for national security purposes is legal. I think your articles misleadingly suggest that there is real uncertainty on this point, when there isn’t. In my opinion, you should not convey the impression to your readers that the NSA surveillance is likely illegal unless there is, at a minimum, a respectable argument, supported by legal authority, to that effect. Do you think there is such an argument? If so, what is it, and what is the authority?” According to Hinderaker, Lichtblau does not reply to this last email.
Gal Beckerman is a former staff writer at CJR.
Nobody is taking the story lightly, except for maybe Kristen Thomas at K’s Stuff who offers us “the perfect Christmas present for the person who has everything.” What is it, you ask? “The complete official NSA transcript of any American’s personal telephone calls for the past 36 months. Choice of languages. You choose the person — we bugged’em.”