Treason isn't an outdated term

After the New York Times released the story last week about Bush's authorization of NSA phone intercepts between al-Qaeda suspects and their counterparts outside the country -- on the day of the Patriot Act vote, after holding the story for a year -- Democrats, 'moderates,' and much of the media has been in an uproar of outrage and shock over such an "abuse of power." Headlines like: "Shocked lawmakers demand spy program probe" are popping up everywhere. Senate Democrats, who knew about the program for the past four years and have received classified briefings on it more than a dozen times, are now acting surprised and indignant that such a program was allowed to continue.

Bush, Cheney, deputy director of National Intelligence Michael Hayden (formerly Director, NSA), and Attorney General Alberto Gonzales have all come out in defense of the legality and necessity of the spying program.

Gonzales:

"There were many lawyers within the administration who advised the president that he had an inherent authority as commander-in-chief under the constitution to engage in this kind of signals intelligence."

"We also believe the authorization to use force [against al-Qaeda] that was passed by the congress. . . . constituted additional authorization for the president to engage in this kind of signals intelligence."

That authorization of force states:

'The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.'

Powerline has a series of posts that shed much light on legality of this issue:

John Schmidt, associate attorney general of the United States in the Clinton administration, superbly explains why the NSA intercept program is legal under all authorities and precedents:

President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

Schmidt quotes the same language from the 2002 decision of the Foreign Intelligence Surveillance Court of Review that we have cited repeatedly:

the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

Powerline also rips apart a follow-up article in the ever-hostile New York Times: "Spying Programs Snared U.S. Calls":

This is the best the Times can come up with:

A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.

The officials say the National Security Agency's interception of a small number of communications between people within the United States was apparently accidental, and was caused by technical glitches at the National Security Agency in determining whether a communication was in fact "international."

[I]n at least one instance, someone using an international cellphone was thought to be outside the United States when in fact both people in the conversation were in the country.

Wow, is this a scandal, or what? On rare occasions, the NSA has inadvertently recovered a conversation involving an al Qaeda operative who is normally stationed overseas and uses an international cell phone number, but who has in fact entered the United States. Even the Times should recognize that this circumstance makes it more urgent, not less so, for the al Qaeda operative's communications to be tracked. The idea that this kind of inadvertent intercept renders the program unlawful is risible on its face.

They also take on the assumption made by nearly every media outlet that warrantless searches must be illegal:

The article on Cheney's defense of the NSA program includes this quote from a liberal law professor who has written a book on threats to the First Amendment:

Geoffrey R. Stone, a law professor at the University of Chicago, said he found the issue straightforward, at least as regards surveillance by the National Security Agency. "Some legal questions are hard," Professor Stone said. "This one is not. The president's authorizing of N.S.A. to spy on Americans is blatantly unlawful."

I assume that there are articulable reasons why Professor Stone holds this view, but the Times doesn't tell us what they are. So last night I sent the following email to Professor Stone:

Professor Stone, you were quoted in the New York Times today to the effect that the administration's NSA international intercept program is plainly illegal. This puzzled me, as I have been researching the issue and have not found any support for that proposition. It appears to be universally recognized by the federal courts that warrantless surveillance for national security purposes is within the President's Article II power. See, for example, the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001:

"The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, 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 and, assuming that is so, FISA could not encroach on the President's constitutional power."

The Supreme Court precedents are consistent with that view.

Andrew McCarthy of National Review lists 28 categories of warrantless searches that are legal under current law.

And this isn't some new GOP or Bush administration expansion of power. It turns out the Clinton administration held the exact same view as the Bush administration on warrantless searches:

Matt Drudge points out that the Clinton administration engaged in warrantless wiretapping. Deputy Attorney General Jamie S. Gorelick wrote that the President "has inherent authority to conduct warrantless searches for foreign intelligence purposes." That is an accurate summary of the holding of every federal court decision that has addressed the issue.

On May 23, 1979, President Jimmy Carter signed an executive order that said, "Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order."

The Clinton-era "Echelon" electronic surveillance program went far beyond anything now under discussion, and became controversial precisely because of its extraordinary scope. A transcript of a 60 Minutes program on Echelon is available here. But the basic concept that the President could order warrantless searches for national security purposes wasn't controversial during the Carter administration or the Clinton administration. Why is it suddenly controversial now?

Good question. And the U.S. wasn't engaged in a global war with Islamic terrorists then, either.

Judge Richard Posner, in an editorial in the Washington Post, argues that not only was the authorization of wiretapping not a threat to civil liberties, but an absolute necessity to counter the threat posed by al-Qaeda and other organizations. (hat tip: Powerline)

The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.

The data that make the cut are those that contain clues to possible threats to national security...

What really bothers me, though, is that the leak of this classified program has not attracted more outrage. Bush called the leak of such a program "shameful." In a time of war, leaking the existence and details of a classified intelligence program to the media should be considered treason. Whoever leaked its existence -- whether it be a rogue CIA officer with a liberal agenda or a Democrat looking to score political points -- did serious damage to national security by exposing this program. Now that the program is out in the open, it is likely that many al-Qaeda operatives that may not have been quite as vigilant or careful in their communications will now rectify any sloppy practices.

But what's really troubling is that nobody in the mainstream media seems to care that a sensitive, classified intelligence operation was exposed during a time of war. Imagine, if you will, what would happen if, say, someone leaked details of a secret U.S. operation to intercept coded German military communications during WWII. I'll tell you what would happen: they would be tried for treason and shot. The leaker in this case was no less culpable. The definition of "treason" is

...the betrayal of one's country by waging war against it or by consciously and purposely acting to aid its enemies

It is impossible to argue that the public exposure of this program has not aided America's enemies. While the leaker's main objective may not have been to "aid America's enemies," it is also certain that the leaker knew that as a result of his/her actions, America's capability to defend itself would be severely damaged, and al-Qaeda alerted to a possible weakness in their network. Yet this person still made the conscious decision to leak the information to the New York Times. That, in my book at least, is enough to constitute treason.