By MARTIN SCHRAM
Scripps Howard News Service
December 21, 2005
WARNING LABEL: This column is about to make two points that may cause sudden shock to faithful readers.
One: President Bush is right when he says that in today's age of global terrorism, a president needs to move quickly and decisively (or as he recently put it, "faster and quicker") to protect America's homeland after receiving intelligence about a suspected terrorist in our midst.
Two: Knee-jerk liberalism is again running rampant (see also: amok) in Washington, threatening our dearest democratic values. It must be stopped if we are to safeguard America and preserve America's distinctive democratic greatness.
On the first, consider this example: The National Security Agency, while legally monitoring international communications from a laptop computer or cell phone of an al Qaeda operative in the Middle East, detects that the terrorist has not only been in contact with persons in, say, Frankfort and Amman - but also Chicago.
Common sense tells us we must begin monitoring (see also: spying on) the Chicago operative's communications to prevent a terrorist strike. Yet, under normal conditions, U.S. law allows the NSA to monitor only international communications, not domestic ones.
But there is good news: The 1979 Foreign Intelligence Security Act ("FISA," in Washingtonspeak) already allows precisely what Bush wants. The president can order instant monitoring of that Chicago operative for 72 hours - during which he can ask a special, secret FISA Court to grant a warrant for continued surveillance.
Here the good news gets better: The secret FISA Court is as close to a judicial rubber stamp as a president can conjure in his fondest power-dream. According to the FISA Court's statistics, from 1979 through 2004, the secret court approved 18,742 applications and denied just four (all in 2003, none of which were appealed by the government).
But these legal avenues were rejected by a new liberal activism that has surfaced from a most surprising source and threatens America's democratic uniqueness. It is the sort of liberal activism that normally would unleash the wrath of conservative strict constructionists, because it stretches the Constitution, current laws and legal interpretations beyond anything intended by our founding fathers.
But strict conservatives are in a quandary, because this liberal activism was initiated by Bush. For reasons he has never explained, the president chose to ignore the legal path provided by the FISA law and bypassed the courts in unilaterally deciding which American citizens or residents can be spied upon by the government without a court warrant.
Bush says he can do this under his constitutional power as commander-in-chief and also according to the congressional resolution after 9/11 that authorized him to use all necessary force to prevent acts of terrorism against the United States. He said he has repeatedly reviewed and extended his approvals to spy inside the United States in the four years since. Which, of course, means he had time to obey and use the FISA law instead of bending, stretching and ignoring the legal prohibitions on government surveillance without a court warrant.
This controversy points up a bizarre and philosophically contradictory pattern that has occurred when staunch conservatives inhabit the Oval Office. Conservative presidents - when stymied by laws preventing them from actions they believe in their hearts is right - turn liberal. They jettison their strict constructionist principles. They liberally interpret their powers in ways conservatives always claimed liberal presidents did.
That is what President Reagan did in his Iran-Contra scandal. He liberally interpreted his powers, claiming the right to bypass congressional prohibitions on providing aid to Nicaragua's contra rebels. He sold weapons to Iran's ayatollah and secretly funneled Iran's anti-American money to Nicaragua's anti-communist contras.
Now another conservative has turned liberal: Bush stretched his executive powers in a way that surely has sent Jefferson, Madison and Barry Goldwater whirling in their places of what should have been final rest.
Philosophic conservatives, being strict constructionists, know that Bush's rationale is liberal, loose and wrong. Conservative Sen. Lindsey Graham, R-S.C., who was cited for his clear thinking here just a week ago, was right yet again last Sunday. "We can't become an outcome-based democracy," Graham said on CBS News' Face the Nation. "Even in a time of war, you have to follow the process, because that's what a democracy is all about... So you cannot give any executive, Republican or Democrat, the ability to make findings to set aside statutes that exist or play the role of a court...."
Graham's bottom line is both conservative and right: "We have to resolve this issue to build confidence in the American people that we're a nation of laws, not outcomes."
E-mail him at martin.schram(at)gmail.com