Where's the Beef?

I really don’t know where to begin. I read Jessica McBride’s sophomoric take on the warrantless NSA wiretapping case in Saturday's Waukesha Freeman and came away thinking, before finishing this sentence, that I was wrong calling her take sophomoric. Juvenile is more apropos.

Her beef is with the decision by Judge Anna Diggs Taylor that the National Security Agency’s (NSA) program of warrantless wiretapping was illegal. Heady stuff. Quite possibly a decision that will have far-reaching implications regarding the right to privacy, freedom of speech and how broad is a president’s power during a time of national duress.

But rather than engage in a thoughtful review of the decision, she chooses instead to begin her long rambling screed with an ad hominem attack and silly ideological rant: Judge Anna Diggs Taylor, who ruled against the government, was appointed by Jimmy Carter. Therefore, her ruling is incorrect.

All right, I’m convinced. It was Jimmy Carter’s fault after all! Snicker.

Anyway, leaving aside that Judge Diggs probably has three times the intellect of pinhead McBride, the real issue in this case is what she did not address. Namely …

Warrants are required for wiretaps! It’s the law. And, these can only be issued by judges and there has to be a pretty darn good reason (otherwise known as probable cause). Are you following, Jessica? This is really not that hard.

Also, there are these pesky things called federal statutes. One of these says that the government must obtain a warrant to wiretap. Said warrant can be obtained from a federal district court. Or, the warrant can be obtained from the Foreign Intelligence Surveillance Court (or FISA court) if a foreign government is suspected to be the employer of the person to be wiretapped.

But there’s the rub. The Bushies get annoyed when little legal safeguards like judges, FISA, the Bill of Rights, get in their way. According to McBride, we Americans should not worry because if we are not breaking the law, who cares if our calls are broken into. Sounds like the argument used in Germany in the ‘30s and ‘40s … “Those Jews must have done something wrong if they’re being taken away.”

The problem with McBride’s argument and that of the government is documented well by Erwin Chemerinsky (the Alston & Bird professor of law and political science at Duke University):

The president’s claim of executive authority to ignore the Fourth Amendment and violate federal laws in the name of protecting national security has no apparent limits. Under the Bush administration’s argument, federal law enforcement could seemingly go into anyone’s home, at any time, without a warrant by claiming that it might better catch terrorists. There is simply no obvious stopping point, and that’s what makes the president’s claim of broad executive power so alarming. Nor is there any reason to believe that warrantless wiretapping is needed to protect national security. The administration could have gone to the Foreign Intelligence Surveillance Court, which approves 99 percent of all government requests for warrants. Under the procedures of the court, it even could have gotten the warrant after the surveillance had been done.

Well, you get the idea. The Bush administration doesn’t think itself bound by law. Nor does McBride think law necessary, which is surprising. She calls herself a journalist, a member of the Fifth Estate. Her duty is to ensure that government does not overstep its authority and report when it does to the citizens of the nation. Instead she rambles on about smarminess, and dismisses the plaintiffs because they are groups or members of groups she does not agree with. For goodness sake, one she heckles is Christopher Hitchens, a conservative writer for Vanity Fair. Of course, his credentials are reduced to being called an annoying and snobby magazine scribe by the inimitable McBride. Such a legal beagle!

If McBride had dug a little deeper, she would have found that Hitchens is not the only conservative to have issues with the Bush administration. Former Rep. Bob Barr (R-GA) praised the decision striking down the warrantless wiretap program, writing in an August 17 statement on his personal website:

"This is a win for all Americans -- Judge Taylor has upheld the Constitution in her ruling and has defended the privacy rights of all Americans against overreaching federal power." Barr added: "[W]hile we all support the Administration in its efforts to discover and thwart possible terrorist acts, including listening in on al Qaeda communications, our laws provide for a legal way for the government to proceed, and perhaps in light of this ruling the Administration will actually follow those laws."

Washington Post columnist George F. Will wrote in a December 20, 2005, column:

On the assumption that Congress or a court would have been cooperative in September 2001, and that the cooperation could have kept necessary actions clearly lawful without conferring any benefit on the nation's enemies, the president's decision to authorize the NSA's surveillance without the complicity of a court or Congress was a mistake. Perhaps one caused by this administration's almost metabolic urge to keep Congress unnecessarily distant and hence disgruntled.

She is at her worst (being sarcastic) when she wonders why Hitchens and his cohorts are even communicating with suspected terrorists, and why haven’t they informed the government of where these terrorist are. Oh, I get it. Al-Qaeda contacted the ACLU and Christopher Hitchens to disclose their plans for the big follow up to 9-11. Oh my, those darn card-carrying anti-Americans.

That she probably doesn’t believe a thing she writes is demonstrated in these two sentences:

The obvious questions are why Hitchens and his cohorts are communicating with suspected terrorists anyway and why they aren’t telling the government where they are.

And …

Which still makes one wonder why Christopher Hitchens wants to call a bunch of Islamic fascist terrorists.

Well, let’s see. We went from communicating with suspected terrorists to calling a bunch of Islamic Fascist terrorists. Suspected terrorists. Real terrorists. Which is it, Jessica?

The real problem with the decision is one that McBride lightly steps on … the appeal of the matter before the 6th Court. Here McBride displays a mighty effort of intellectual curiosity and journalistic acumen … “Many legal experts believe the 6th Circuit is going to overturn the ruling anyway.”

That’s it! Earth shattering in its simplicity. Snicker, again.

She might have looked up a fine piece by Reynolds Holding entitled, “Why the Wiretapping Ruling Is Vulnerable.” He reckons that:

…Taylor's opinion is remarkably thin on legal reasoning, leaving it vulnerable to getting reversed by the generally conservative Sixth Circuit Court of Appeals. Worse, the opinion's provocative, almost dismissive, language gives weight to criticism that this decision was more about politics than the law.

The article is worth reading. And, I happen to agree with his conclusion. One hopes that the 6th Circuit (conservatives outnumbering liberals 8-6) will discover some independent thinking and continue to rule against the Bush administration’s abuses to our rights.

Ah, independent thinking. Will there ever be a day when Charlie, er, McBride, exhibits any? Likely not.