Jewish World Review Dec. 28, 2005 / 27 Kislev, 5766

Paul Greenberg

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A puzzle: when domestic spying isn't | The slam-bang, thumb-in-the-eye, name-calling, head-butting process known as civil discourse in this country continues unabated, punctuated by the usual terms of endearment: Domestic Spying! Impeachable Offense! Betrayer of the Constitution! DICTATOR!

Trying to peer through all the fuss and fustian in order to make some sense of this debate while dodging the flying crockery can be something of a challenge.

In those first few days after The New York Times broke this story — or rather only a part of it — it was like trying to piece together one of those huge jigsaw puzzles without all the pieces. The administration was of little help, with its usual lag time when responding to criticism. Once again the White House was giving its critics all the rope they needed. Call it the Dan Rather strategy. It may be effective politics eventually, but in the meantime it does little for national unity. Or national clarity.

Think of some counter-terrorism agent somewhere in the bowels of the National Security Agency eavesdropping on a call being made in Beirut or Hamburg or who knows where, when he realizes his suspected terrorist is calling somebody in . . . . this country!

What's our terrorist-hunter to do? He's supposed to monitor only foreign intelligence. Is the call he's listening to domestic or foreign? Both or neither? Is there such a thing as only semi-domestic spying, and, if so, is it illegal?

Should our spy hang up at once since the NSA isn't allowed to engage in domestic surveillance? Should he say "Excuse me," and politely get off the line? Or "Sorry, wrong number," and pretend it was only a case of crossed wires? Or should he put in a simultaneous call to the FISA court — the secret body set up to issue warrants for domestic wiretaps?

How practical would that last alternative be, especially in a case where every minute counts? Should he just keep listening and apply for a search warrant later? After all, he's got three days — 72 hours — to apply for one after he's intercepted a call.

But, it could be argued, and surely will be in this litigious society, that the NSA already has blanket permission for such intercepts. In 2002, the appellate court that supervises the operation of FISA (the Foreign Intelligence Surveillance Act) upheld the president's "inherent authority to conduct warrantless searches to obtain foreign intelligence information."

Instead of the president's violating the Constitution by authorizing such wiretaps, to give the FISA court the final say on foreign surveillance would let it, in the court's words, "encroach on the President's constitutional power." What a tangled legal web we weave when first we cry Domestic Spying!

What's in a name? A lot when it's misleading, Note that all the calls deliberately targeted by this program are ones to and from abroad, not domestic ones. Yet the tag-line of this story, and what makes it so provocative is: Domestic Spying! As in the now standard phrase in the news columns: "White House-approved domestic spying program."

Vocabulary remains the Little Round Top of every political battle, and the president's more partisan critics have seized it early and often. You can tell the midterm elections are coming up next year. As for those of the president's critics who are sincere and not just out to make partisan hay, they bring to mind dear old Henry Stimson, Herbert Hoover's secretary of state and later FDR's secretary of war. Mr. Stimson was shocked to discover that American cryptographers had broken the Japanese diplomatic code. "Gentlemen," he harrumphed, "do not read each other's mail." And the whole operation was shut down. Pearl Harbor followed in due course.

Even The New York Times, which revealed this spy program, sat on the story for a year. And even now it isn't telling us all it knows. Does that mean the Times is in on this nefarious plot against our civil liberties, too? Or does it believe the threat of a terrorist attack has so abated since last year that it's now safe to expose this secret program? In that case, why hold anything back? I give up. Like so much else about the Times' news judgment this past year, its handling of this story mystifies.

That G-man we imagined listening in on international phone calls isn't so imaginary. It was the NSA's intercepts of conversations that led to the apprehension of an al-Qaida operative in this country — a truck driver named Iyman Faris involved in a plot to blow up the Brooklyn Bridge. He would plead guilty in 2003 to providing material support to terrorists.

If that plot had succeeded, it's unlikely there would now be all this outrage over George W. Bush's having authorized domestic or semi-domestic or semi-foreign spying, or whatever this is. Instead, the country would be even more outraged over a president's not having authorized it.

In the aftermath of September 11th, there was a lot of anger and bitterness, and understandably so, about the artificial wall that had been erected between our foreign and domestic intelligence agencies, the CIA and FBI. That wall played a large part in keeping the government from thwarting a surprise attack that cost some 3,000 American lives in the worst attack on American soil since Pearl Harbor. Are we now going to resurrect that arbitrary barrier between domestic and foreign spy agencies? Let's hope not.

There was a lot of talk after September 11th about successive administrations failing to connect the dots. These days sophisticated technologies can quickly run through huge volumes of satellite-relayed overseas calls to and from phone numbers in the United States. Those calls can be instantaneously cross-checked against databases of suspicious words, phrases, phone numbers, voice patterns of known terrorists, and only God (and the NSA) knows what other data. Imagine trying to get FISA warrants to run every one of those calls through NSA's electronic filter.

Inevitably a lot of perfectly innocent conversations may be caught up in this vast, sticky web — along with the single phone call to or from someone like Iyman Faris using phrases like Brooklyn Bridge or high explosives.

Should this whole operation be shut down because somebody might overhear an innocent conversation? Is the administration now being accused of connecting too many dots?

There are a lot of pieces to this puzzle. The president's more single-minded critics seem to be aware of only one — the Fourth Amendment's guarantee against warrantless searches, as if the Constitution of the United States consisted of a single clause.

But the framers of the Constitution and Bill of Rights were not simpletons and they did not give us a simple Constitution. But a remarkably flexible one that makes the president commander-in-chief of the armed forces and gives him sufficient power to protect the country when it is under attack. As a great justice of the Supreme Court (Robert H. Jackson) once noted, the Constitution is not a suicide pact. Although he added that a doctrinaire court could soon enough turn it into one.

George W. Bush is not the first president to be called tyrannical when he acted vigorously to defend the country. During the late unpleasantness, aka the Civil War, Abraham Lincoln went so far as to suspend the writ of habeas corpus, the Great Writ of freedom itself, which dates back to the Magna Carta.

When denounced as a dictator, Mr. Lincoln replied that he was willing to suspend one clause of the Constitution in order to preserve the whole: "Often a limb must be amputated to save a life; but a life is never wisely given to save a limb."

Difficult challenges demand difficult decisions. The Constitution of the United States is no simple thing, and neither is the defense of the country against new and unprecedented dangers. As our circumstances are new, as Mr. Lincoln said in another time of peril, we must think anew and act anew. The decisions a president and commander-in-chief must make in such times aren't simple, no matter how simple — even simplistic — the criticisms of him may be.

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. Send your comments by clicking here.

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