John Hinderaker at PowerLine.com offers this analysis of the media brouhaha over the New York Times story about secret surveillance of al Qaeda allies in the U.S. He makes an excellent point about what the constitution says about search warrants, but the most chilling stuff is in the last paragraph. The leakers and the Times, in their Ahab-like pursuit of the Bush administration, may well have made it very much more difficult to protect our families from terrorist attacks on our soil.
Hinderaker writes:
[T]hose who leap to the conclusion that the intercepts must be unconstitutional seem to assume that all searches require a warrant. That is not correct. The Fourth Amendment prohibits "unreasonable" searches and seizures. Warrantless searches are legal, and appropriately so, in a number of circumstances.
Second, the issue of speed is critical. When we capture a cell phone or laptop being used by a terrorist, it is usually because we captured or killed the terrorist. The amount of time we have to exploit the capture is very short. The terrorists will soon figure out that their confederate is out of business, and stop using his cell phone numbers and email addresses. So if we are to benefit from the capture, we must begin obtaining information right now.
A delay of even a few days may render the information useless, as the terrorists will have realized that their colleague has been neutralized. And it is likely that the first hours or even minutes after we obtain a cell phone number or email address are most apt to yield helpful new information. So it is easy to see why going through the process needed to obtain a warrant from the FISA court would undermine the effectiveness of our anti-terror operations.
This is entirely different from the situation we are all familiar with, where wiretaps are authorized against organized crime figures. Such wiretaps are not executed in connection with an arrest. They often continue for months or even years. There is ordinarily nothing about the context to suggest that the utility of the wiretap will expire in a matter of days, if not hours. Hence the delay required to obtain a warrant is usually immaterial.
Under the circumstances we face in dealing with the terrorist threat, is it unreasonable--the Constitutional standard--to begin immediately intercepting calls being made to a captured terrorist cell phone, whether those calls originate in the U.S. or another country? Of course not.
I'm just guessing here, but I suspect that we have technology in place that allows us to begin intercepting phone calls within a matter of minutes after we learn of a phone number being used by an al Qaeda operative overseas. My guess is that there is a system into which our military can plug a new phone number, and begin receiving intercepts almost immediately. I hope so, anyway; and I'm guessing that the disclosure of this system to al Qaeda is one of the reasons why President Bush is so unhappy with the New York Times. If we do have such a technology, it certainly would help to explain the remarkable fact that the terrorists haven't executed a successful attack on our soil since September 2001. And the disclosure of such a system, by leaking Democrats in the federal bureaucracy and the New York Times, makes it more likely, by an unknowable percentage, that al Qaeda and other terrorist organizations will launch successful attacks in the future.
There certainly seems to be cause here for an investigation into the source of this story. The leakers should be prosecuted and the Times should be economically punished by Americans fed up with the casual attitude displayed by liberals toward our national security. Perhaps it is time to indeed begin to start questioning the Left's patriotism, especially in light of the fact that, as Byron York demonstrates in an article at National Review Online, what the Bush administration did was done by every president, at least since Reagan.
Moreover, it was a policy vigorously defended by the Democrats in the Clinton administration whose point man (woman) on the issue was Deputy Attorney General Jamie Gorelick. Gorelick argued in 1994 that the president has the power to do just what George Bush is being pilloried by Democrats for doing today. These people either have no memory or they are astonishing hypocrites.