BCT Editorial – 7/11/07

This page was last updated on July 15, 2008.

Legal technicality; Editorial; Beaver County Times; July 11, 2007.

Below is a detailed critique of the subject editorial.

“Civil liberties in Bush America just took another hit.”

[RWC] If you believe this is about the Times alleged concern for civil liberties, I have a bridge to sell you. This is all about partisanship.

“Last Friday, two members of a three-judge panel of the Cincinnati-based U.S. Court of Appeals overruled a lower court ruling that held a National Security Agency’s warrantless wiretapping program was unconstitutional.”

[RWC] To read how the Times viewed the lower court ruling from August 2006, please read my critique of “Fright might.” If you recall, even the reliably liberal Washington Post referred to the ruling as “A Judicial Misfire.”

“The judges did not rule on the constitutionality of the program, which President Bush secretly authorized to eavesdrop on communications involving potential terrorists soon after the Sept. 11, 2001, attacks on America.”

[RWC] I love the use of “secretly.” Does the Times expect us to take out notices in the press telling enemies about our intelligence gathering programs? Given the position consistently taken by the Times on the intelligence gathering issue – at least during the Bush administration, perhaps the answer is “yes.”

The editorial failed to note the eavesdropping is/was on international communications.

“Instead, they overturned it on a technicality - the plaintiffs, who included lawyers and journalists, could not show injury direct and concrete enough to allow them to have standing to sue.”

[RWC] The court records refer to the case as “American Civil Liberties Union, et al. v. National Security Agency, et al.” Hmm, does anyone care to guess why the editorial didn’t mention the ACLU was the lead plaintiff, but instead merely referred to “lawyers and journalists?”

The comment that the ACLU, et al. “could not show injury direct and concrete enough to allow them to have standing to sue” is pure deception. The implication is the ACLU did demonstrate some injury. That’s not what the court found. The ruling reads, “But the plaintiffs do not — and because of the State Secrets Doctrine cannot — produce any evidence that any of their own communications have ever been intercepted by the NSA, under the TSP, or without warrants. Instead, they assert a mere belief, which they contend is reasonable and which they label a ‘well founded belief.’”

“The New York Times reported that because ‘it may be impossible for any plaintiff to demonstrate injury from the highly classified program, the effect of the ruling was to insulate the program from judicial scrutiny. Thus, the program’s secrecy is proving to be its best legal protection.’”

[RWC] “The program’s secrecy is proving to be its best legal protection?” Are the NY Times and BC Times kidding? The Terrorist Surveillance Program stopped being secret when the news of its existence was widely reported in the press in 2005.

“This wiretapping program represents a threat to civil liberties because of the way in which the Bush White House implemented it. The Terrorists [sic] Surveillance Program bypassed a secret court that was created under the 1978 Foreign Intelligence Surveillance Act. The Washington Post reported the purpose of that court was to provide judicial oversight of clandestine surveillance within the United States.”

[RWC] “Clandestine surveillance within the United States?” This is the editorial’s way of claiming domestic surveillance when that’s not what the TSP did. If the TSP is/was domestic surveillance, then a plane flight from Pittsburgh to London is domestic travel.

“In its history, the FISA court has been very generous in authorizing wiretaps, and the law even allows permission to be granted retroactively. Given this track record, the administration had no good reason to make an end run around the law or the court.

“Yet these mild constraints were too much for an administration that believes it can do anything it wants anytime it wants to anybody it wants, all in the name of fighting terrorism.

“As we argued in regard to renewal of the Patriot Act, Sept. 11, 2001, was not a carte blanche for the executive branch to do whatever it wants. Meaningful oversight by Congress and the courts is absolutely essential to protect our rights.

“The judge in the 6th Circuit who wrote the lead opinion said the case presented ‘a cascade of serious questions,’ including whether NSA violated the Constitution - the First Amendment, the Fourth Amendment or the Separation of Power Doctrine - or if it violated federal statutes, including FISA.

“Those questions might yet get answered. The Times reported another challenge to the warrantless wiretap program will be heard next month in the 9th U.S. Circuit Court of Appeals. When it comes to protecting our liberties, the answers will matter.”

[RWC] FYI, when the appeals court ruling was released, a news report indicated the case became moot earlier this year when the Bush administration and the FISA court came to some agreement that adequately addressed the challenges that led to the TSP in the first place.

Did not referring to the TSP as domestic wiretapping represent a conscious effort, or did it simply get by the proofreading/editing process? As a reminder, previous editorials referred to the TSP as domestic wiretapping. According to the subject appeals court ruling, this is the TSP: “The NSA (1) eavesdrops, (2) without warrants, (3) on international telephone and email communications in which at least one of the parties is reasonably suspected of al Qaeda ties.” The emphasis on international was mine.

Is/was the TSP legal? I don’t know and there’s quite a bit of disagreement within the legal community, even crossing party lines. Here’s where folks like the Times and I part company. The TSP as defined made obvious sense and no one appeared to disagree with its goals. If it was not legal, the impetus should have been, “OK, let’s do what we need to do to accomplish the goals and be legal.” Folks like the Times, however, chose to take the approach of bashing President Bush while misrepresenting the TSP.