IN WHAT was meant to be a bipartisan forum Monday to highlight concern over the use of executive power in the National Security Agency wiretapping cases, former Vice President Al Gore went on a fire-and-brimstone rant. Before the American Constitution Society and the Liberty Coalition, Gore mounted a tirade that consisted of an all-out assault on President Bush and NSA wiretapping practices.
Among other things, Gore demanded a special counsel be appointed by the attorney general to investigate. Gore asserted that Bush is breaking the law "repeatedly and persistently" and is a "threat to the very structure of our government." Gore even avowed that Bush "brought our republic to the brink of a dangerous breach in the fabric of the Constitution," implying that Bush will single-handedly turn our democratic republic into a dictatorial regime. If only Gore would set aside the invective and engage in an honest debate of an important issue. Instead, his charged rhetoric only disseminated misinformation and prevented an intellectual discourse on a controversial subject.
If you took Al Gore's words as biblical truth, you'd think that President Bush sat at his desk all day looking up random names in the phone book and listening in on phone conversations just for kicks. In reality, the NSA's warrentless wiretaps have been essential to protecting our nation from terrorism. As former Rep. John Kasich, R-Ohio, noted in an interview yesterday, the ability to conduct wiretaps is crucial to defending our borders. Kasich pointed out that wiretaps led to the arrest of Iyman Farris in 2003 by the FBI. Farris had plotted with Khalid Shaikh Mohammad to blow up the Brooklyn Bridge.
The debate over the NSA wiretaps boils down to this: Is it wise to listen in on conversations and intercept e-mails between terrorists linked to Al-Qaeda who are outside of the United States, when they correspond with individuals that may be inside of the country? Is it permissible to do this even if a warrant isn't granted by a judge? This is a contestable issue, and it should be examined closely. Gore made blanket political statements that didn't shed light onto the complex legal underpinnings behind the NSA's eavesdropping.
Gore left out a key piece of information about warrantless wiretaps -- the precedents established by previous administrations, including his own. President Bill Clinton's deputy attorney general, Jamie Gorelick, stated before the Senate Intelligence Committee in 1994 that "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes." John Schmidt, an associate attorney general under Clinton, stated in a December 2005 editorial, "I do not believe the Constitution allows Congress to take away from the president the inherent authority to act in response to a foreign attack."
Gore mentioned how the Federalist Papers, once widely read and discussed by ordinary citizens, are largely ignored today. Perhaps he needs to re-read them. In an e-mail response, Prof. Robert Turner, associate director of the Center for National Security Law at the University Law School, noted, "In Federalist No. 64, John Jay explained that the new Constitution would leave the president free 'to manage the business of intelligence as prudence might suggest.'" Turner was senior White House lawyer in 1982 in charge of overseeing the enforcement of the 1978 Foreign Intelligence Surveillance Act, which established a secret court that needed to approve surveillance operations of U.S. citizens. However, there are exceptions to the statute, including a section that grants executive authority without a warrant during a time of authorized war. In 2002, the FISA review court concluded that the president had the inherent constitutional powers that Gorelick defended.
Turner cited additional legal precedents, including Marbury v. Madison, which established that "a legislative act contrary to the constitution is not law" and the 1972 Keith case, in which the Supreme Court "held that the president did need a warrant for wiretaps involving purely domestic targets like the Black Panthers, but it emphasized that its holding did not address the issue of foreign intelligence surveillance."
Gore's speech was wrought with inaccuracies, mischaracterizations and hyperbole. There is justifiable apprehension over the NSA's operations, but there is also a significant amount of legal precedent supporting Bush's authorization. Gore failed to recognize this, leveling outlandish and premature charges.
Gore's hysterics did nothing to add any substantive enlightenment to the legitimate disagreement over the NSA's practices, which should be and will be further scrutinized by Congress. At this point, the specifics of the NSA's wiretapping operations are not public knowledge (even Gore admitted he didn't know all the details), so a brash rush to judgment is uncalled for and irresponsible. Gore criticized Congress for ignoring their responsibility to spend time in "thoughtful debate of the issues." Maybe he should follow these commands before chastising others.
Whitney Blake is a Cavalier Daily associate editor. She can be reached at wblake@cavalierdaily.com.
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