View Full Version : Plenty of Checks, No Blank Ones

01-24-06, 07:44 AM
Plenty of Checks, No Blank Ones
If President Bush were really abusing power, he would pay a price.
Tuesday, January 24, 2006 12:01 a.m. EST

This weekend Sen. John Kerry called the Bush administration's al Qaeda wiretaps "a violation of the law" and characterized the program as an unchecked abuse of presidential power and a threat to our constitutional liberties. Others have called it a "domestic surveillance program."

There is a debate to be had in this country over when warrantless wiretaps are warranted. But there is a larger debate that is now necessary over how far the president should be allowed to go in conducting what top military planners call "the long war" against al Qaeda and its associated movement--a movement that is much larger than Osama bin Laden. Where Sen. Kerry and others stand is clear: The wiretaps should be run under the Foreign Intelligence Surveillance Act or something similar, making them subject to both judicial and congressional review.

There is another check on executive power, however, that is being overlooked in this debate: personal accountability. If a long pattern of far-reaching abuse emerged in the wiretapping program authorized by this president, George W. Bush would be on the hook for it. This program has been reauthorized some three dozen times since the Sept. 11 attacks, and it comes up for review about every 45 days or so. Each time Mr. Bush has personally reviewed it and signed off on its continuation. There is no "plausible deniability" of this program. It is not now possible to claim that this president was unaware of its inner workings or who the targets of the wiretaps have been. In this case, the buck undoubtedly stops on President Bush's desk.

This is not a trivial check on power. President Bush is staking his presidency on these wiretaps not being abused as well as the public siding with his belief that it is reasonable for a president to tap into phone conversations that cross international borders to prevent terrorist attacks on American soil.

There is, of course, also a legal and constitutional argument to be made in favor of the wiretaps. Homeland Security Secretary Michael Chertoff, a former top Justice Department official who has also served as a federal judge and a prosecutor, dropped by The Wall Street Journal's offices recently and made a compelling legal and constitutional case for the wiretap program in four succinct points:

• The very language of the Fourth Amendment to the Constitution invites using a "reasonable" standard in deciding when to conduct searches.

• During the Cold War it was widely accepted that the federal government had the power to use radar to spot incoming Soviet bombers and missiles. Wiretaps are today's equivalent of the Cold War's radar because instead of Soviet missiles, we're confronting terrorists who would bring themselves and possibly small bombs in suitcases into the country.

• The FISA court itself has found that the Foreign Intelligence Surveillance Act does not curtail the president's constitutional ability to conduct warrantless searches.

• The government is not listening to phone conversations that take place entirely within the United States. Each one of the calls monitored involves someone either calling from or calling to a foreign number (in addition to involving at least one suspected al Qaeda operative). It's long been accepted that the federal government has a wide latitude to conduct searches at the nation's borders, which is why passenger luggage, container ships and other things can be searched as they cross into the country without first getting a warrant.

Mr. Chertoff made another point relevant to this debate--that although al Qaeda has been knocked back on its heels by the global war on terror, it remains a lethal organization. It might be tempting to assume, he said, that because many of the low- and middle-level operatives caught in recent years appear to be dimwitted or even hapless that al Qaeda is no longer a threat. But that would be a mistake. As a prosecutor, he found many violent criminals were also "mopes" but were nonetheless still dangerous people.

At a Manhattan Institute luncheon in New York recently, Vice President Dick Cheney sounded a similar note of caution. Some in Washington, he said, "are yielding to the temptation to downplay the threat, and back away from the business at hand." That may be a "comforting mindset," he said, but it is also dangerous.

Mr. Miniter is assistant editor of OpinionJournal.com. His column appears Tuesdays.