Unconstitutional hysteria

Russ Smith:

One of the more absurd complaints leveled against President Bush during his tumultuous tenure in office is that, in combating terrorism, he's eviscerated the Constitution. This hysteria is not confined to critics in the blogosphere or strident left-wing magazines such as the Nation but is found, as well, in mass-market newspapers and magazines. A citizen who reads, in a vacuum, editorials and oped columnists in the New York Times, say, might believe that since September 11 America, led by the Bush administration, has become a police state.

The latest round of hyperbolic arguments offered by anti-administration partisans concerns the acquiescence of Congress to put off for six months any revisions to Mr. Bush's allowance of wiretapping of telephone calls that are suspected to contain discussion of possible terrorism.

Newsweek's Jonathan Alter, writing in that magazine's current issue, claims that Mr. Bush has "betrayed his oath to defend the Constitution," and what's worse, from his point of view, is that Democrats were too politically frightened to oppose him.

Hardly anyone would disagree that the 1978 Foreign Intelligence Surveillance Act, which is badly outdated, needs overhaul; it's the extent of the changes that has Democrats in a dither.

Mr. Alter begins his column: "I hate to sound melodramatic about it, but while everyone was at the beach or ‘The Simpsons Movie' on the first weekend of August, the U.S. government shredded the Fourth Amendment to the Constitution, the one requiring court-approved ‘probable cause' before Americans can be searched or spied upon."

The author's essay is a role reversal of sorts: On election night in 2000, Mr. Alter, perhaps sleep deprived, was seen on MSNBC in the wee hours fairly ranting that Vice President Gore was cheated and should be granted the presidency because he won the popular vote. Unless I'm mistaken, that seems to be an example of "shredding " the Constitution.

What's particularly galling about the inflamed rhetoric of Mr. Bush's detractors — doing exactly what they accuse him of — is that there's no historical context to the opinions. Public and private education has devolved to such a point that it's not surprising few people are familiar with President Wilson's actions during World War I, but it's disgraceful that supposedly learned journalists, professors, and politicians are either ignorant of his policies or conveniently choose to ignore them.

Wilson, a Democrat, was successful in asking Congress to pass the Sedition Act of 1918, a piece of legislation that made it illegal to say, write, or print anything that was deemed "disloyal, profane, scurrilous or abusive" about the government's involvement in the war.

Approximately 2,000 people were convicted of this new crime, most notably socialist Eugene Debs, who was sentenced to 10 years imprisonment and later granted clemency by Wilson in 1921. If a president of Wilson's beliefs were in power today, one wonders about the fate of Steven Levitt, who, in the New York Times blog "Freakonomics" of August 8, asks the question, "If You Were a Terrorist, How Would You Attack?"

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The New York Times's editorial page has, among the elite daily newspapers, been virulent — some would say screeching — in its opposition to almost every decision Mr. Bush makes. This includes, repeatedly, castigating the president over the FISA brouhaha, with the refrain that the administration is "stonewalling" and denying Americans information about the issue. On August 11, a Times editorialist concluded: "If Congress once again allows itself to be cowed by Mr. Bush's fearmongering, it must accept responsibility for undermining the democratic values that separate this nation from the terrorists that Mr. Bush claims to be fighting." One can ignore the ridiculous notion by the writer that Mr. Bush is merely "claiming" to combat the terrorists who could at any time, without warning, inflict catastrophic damage on these shores. After all, it's of a piece with the daily's drumbeat that Mr. Bush can't be trusted on virtually any matter of national importance.

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A better argument can be made that FISA is unconstitutional than that the terrorist surveillance program is unconstitutional. The proponents of terrorist rights are trying to give them 4th amendment rights while we are trying to prevent them from mass murder by intercepting their communications in order to stop the murder rather than prosecute them. It domes down to a basic disagreement about strategy.

The terrorist rights Democrats want to use a lawfare strategy which puts us on the strategic defensive and makes us reactionary. It also gives up to the enemy our sources and methods of tracking his plans and attacks. A warfare strategy puts us on the offensive and preempts attacks and keeps the enemy off balance making it more difficult for him to plan and execute attacks. One of the ways you do that is by intercepting his communications with his agents, be they in other countries are this one. If you had a wire on Tony soprano you would not just listen to his side of a conversation.

We should challenge this hysteria head on by working to abolish FISA. Judges have no business making decisions about national security intercepts of enemy communications. The fact that they have limited those intercepts by 75 percent for a period of time is evidence enough of the silliness of the terrorist rights Democrats.