January 5, 2006
The Administration Investigates the Wrong People

By Steve Chapman

Last month, the American people were presented with evidence that the president of the United States had broken the law. The New York Times, relying on confidential information provided by people in the government, reported that the administration has conducted unauthorized surveillance of phone and e-mail communications between Americans and people abroad.

Republicans, as we all know, believe in punishing lawbreakers. But lately, their sternness is selective. Instead of asking a special prosecutor to examine the legality of its abuses of power, the administration decided to go after those who exposed them.

This inquiry brings to mind Evelyn Waugh's response upon hearing that Randolph Churchill had undergone surgery for a benign tumor. The doctors, he complained, had managed "to find the only part of Randolph that was not malignant and remove it."

The leakers, if they broke laws, did so only to stop even more serious abuses by people at the highest levels of government. Yet the Justice Department is unable to work up any enthusiasm for investigating the president or the National Security Agency.

If the Justice Department insists on pressing its case, we can expect a re-enactment of the Valerie Plame probe. Unless the leakers can be found, the reporters will be called on to identify their sources -- as Judith Miller and Matthew Cooper were eventually coerced to do. But if the administration expects the courts to force the Times reporters to divulge their sources this time around, it may find that it is doing a swan dive into an empty swimming pool.

The critical difference is that unmasking Valerie Plame served no useful purpose. The leaks in this case, by contrast, served a function that is vital in a democracy: letting the public know that the government is secretly doing something it is not authorized to do.

The president insisted that the disclosures amounted to "helping the enemy." One of his spokesmen said, "The fact is that al Qaeda's playbook is not printed on Page 1, and when America's is, it has serious ramifications."

But an opposing coach doesn't have to steal the Indianapolis playbook to find out that Peyton Manning sometimes throws the ball. As Daniel Benjamin, former counterterrorism director for the National Security Council, wrote recently in Slate, "No terrorist with half a brain thinks his communications are protected by Fourth Amendment strictures against unlawful search and seizure."

The Foreign Intelligence Surveillance Act, after all, permits this sort of surveillance with a court-approved warrant. It's no surprise to al Qaeda operatives that the U.S. government may tap their phone calls. The only surprise is that the government may also tap calls made by American citizens on American soil, without judicial authorization.

So the administration will have a hard time showing that these revelations harmed our security. Absent such harm, judges are likely to balk at forcing testimony by reporters. In the first place, it may be that no crime has been committed. In the second place, the courts may rely on well-established precedents to conclude that even if the leaks were illegal, they were justified to expose a greater evil.

What evil? A policy that invades privacy and almost certainly violates the law. The Foreign Intelligence Surveillance Act establishes a procedure for the executive branch to get warrants to carry out such wiretaps. The administration didn't follow that procedure and says it didn't have to -- because the war resolution passed by Congress after the Sept. 11 attacks implicitly overrode FISA. This nonsense becomes nonsense on stilts when the attorney general concedes that, if asked, Congress would have refused to authorize such surveillance.

The administration also claims that, regardless of what the law says, the president has "inherent authority" as commander in chief to engage in wiretapping without a warrant. Just because a president has certain inherent prerogatives, however, doesn't mean Congress has no power to regulate them.

As Justice Robert Jackson wrote in the Supreme Court's 1952 decision barring President Truman from seizing steel mills during the Korean War, the president's "command power is not such an absolute . . . but is subject to limitations consistent with a constitutional republic whose law and policy-making branch is a representative Congress."

In this instance, though, President Bush decreed that he could not only defy such legal limitations but do so in secret, and that those who exposed his defiance should be punished. His is an old story: For the emperor to appear naked in public is appropriate. For anyone to mention it is not.

Copyright 2005 Creators Syndicate

Steve Chapman

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