Posted August 9th, 2007 by lex
“Know the enemy and know yourself; in a hundred battles you will never be in peril. When you are ignorant of the enemy but know yourself, your chances of winning or losing are equal. If ignorant both of your enemy and of yourself, you are certain in every battle to be in peril.” – Sun Tzu, “The Art of War”
Before going on their August vacation, Congress passed desperately important legislation regulating the way in which the National Security Agency monitors electronic communications between known terrorists. That capability had been severely constrained ever since last January, when, in the interest of clearing partisan smoke from an important national security issue, President Bush set aside his claim to constitutional privilege under Article II and agreed to abide by the limitations imposed by the 1978 Foreign Intelligence Surveillance Act. His willingness to do so was contingent upon a committment from Congress to update a FISA Act that had been rendered dangerously obsolete by modern technological advances.
NSA is prohibited by law from performing domestic intelligence gathering. Most of the legitimate concern about the Terrorist Surveillance Program lay in the “one end” provision that NSA had been using. In essence, this meant that, so long as a communication system had one end in a foreign country – international communications, by one definition- they could be monitored without judicial oversight in the form of a search warrant or FISA court authorization even if the other end might have terminated in (domestic) America.
Depending on how your parse the words “domestic” and “international” (just try catching a flight from Los Angeles to Bonn at the LAX domestic terminal) this could have resulted in a violation of constitutional privacy protections. One hypothetical example of such a result might have been if an unwitting citizen – a journalist, say – communicated in good faith with an overseas source. If that source had terrorist connections – even if the journalist was unware of them – his privacy could have been impermissably impinged upon. Taking the upside/downside risks into consideration you might consider this threat pretty small beer, but nevermind: A lawsuit challenging the TSP, sponsored by the ACLU in their own name, as well as certain other academics and journalists, initially received the favorable endorsement of the notoriously illucid Judge Anna Diggs Taylor before it was tossed out on appeal because the plaintiffs could not prove “standing” to sue.
Electronic communications – like electricity generally – follows the path of least resistance. The net result being that even communications between two known terrorists that had both ends overseas – From the Pakistani frontier region of Waziristan to Diyala province in Iraq for example- might at some point have been routed through the relatively more efficient US infrastructure. Since January, the NSA has been proscribed from monitoring these communications, even as al Qaeda issued new threats * of substantial terrorist attack. For the last six months we have been vulnerable, walking in the darkness in the presence of our enemies.
So, hat’s off to Congress for passing the legislation, right? Well, no – not if, like many bloggers on the left apparently seem to think, the enemy isn’t terrorists plotting to blow up airliners and embassies, etc. but rather the democratically elected madmen atop our own national government ** :
Progressive and liberal groups and left-leaning blogs are furious, tossing around fighting words like “spineless,” “craven” and “weak.”
So much for the hopes of Democratic leaders that they could avoid a withering political attack by clearing the way for Congress to approve an expansion of the Bush administration’s terrorist surveillance program before the August recess.
“Democratic leaders in Congress didn’t put up much of a fight and they didn’t stand up and say ‘no’ to Bush,” said an e-mail message that political operatives for the group MoveOn sent Tuesday to the organization’s members, urging them to sign an online petition calling on Congress to reverse the new law.
Because the most important thing is to “say ‘no’ to Bush”, even if, you know: He’s right.
This is madness.
Congressional leaders, meanwhile, have discovered that, when you make friends with angry people? You shouldn’t be surprised when you get a little on you. In yet another classic example of “portraits in courage,” their answer has been to shift the blame:
Last Thursday evening, during the frantic endgame of a White House push to broaden its eavesdropping authorities, Democratic leaders from the House and the Senate gathered in the Capitol office of Nancy Pelosi, the speaker of the House, for a conference call with Mike McConnell, the nation’s top intelligence official.
Mr. McConnell was acting as the Bush administration’s chief negotiator for the measure, and the Democrats were furious to learn that he had rejected their latest proposal. They questioned whether Mr. McConnell had succumbed to pressure from the White House and Republican lawmakers. He denied those accusations, but admitted that intense pressure from Congressional leaders of both parties had taken a toll.
“I’ve spent 40 years of my life in this business, and I’ve been shot at during war,” Mr. McConnell responded, according to people who participated in the conference call. “I’ve never felt so much pressure in my life.”
So, knowing the enemy: Remember, you’re either with ‘em or against ‘em. So, welcome to the ranks of the bad guys, Admiral. Stand by for heavy rolls.
And as for the rest of us, we’ve come to a strange and heretofore unknown pass when the best thing for a politician to do in order to satisfy his most politically vocal allies is to distance himself from good legislation.
* 09-14-2018 Link Gone; no replacements found – Ed.
** 09-14-2018 Original link gone; replacement found – Ed.