If al Qaeda phones, tell them we can't take the call.

[Stevicat]

Can We Talk?
If al Qaeda phones, tell them we can't take the call.

BY DANIEL HENNINGER
Friday, February 10, 2006 12:01 a.m. EST

Let's start with the one thing we know for sure about the Bush administration's program to listen to al Qaeda's phone calls into and out of the United States: It's dead.

After all the publicity of the past two weeks, does anyone think that the boys working on plans for Boston Harbor, the Golden Gate Bridge or Chicago's Loop are still chatting by phone? If the purpose of the public exposure was to pull the plug on the pre-emptive surveillance program, mission accomplished. Be safe, Times Square.

At the least, al Qaeda's operatives in Yemen, Iraq, Pakistan, Hamburg and the U.S. will hold off phoning in the next mass-murder plan until the U.S. Senate finishes deliberating Arlen Specter's proposal to legislatively order up an opinion from the judges on the Foreign Intelligence Surveillance Act court, est. 1978, as to whether the antiterrorist wiretap program violates the law that created their jobs.

This passage appears on the second page of the 9/11 Commission's 567-page report, On Terrorist Attacks Upon the United States: "We learned that the institutions charged with protecting our borders, civil aviation and national security did not understand how grave this threat could be, and did not adjust their policies, plans and practices to deter or defeat it. . . . We learned of the pervasive problems of managing and sharing information across a large and unwieldy government [my emphasis] that had been built in a different era to confront different dangers."

And those who cannot remember the past are condemned to repeat it. Having watched one passenger-filled airliner fly into a skyscraper on a peaceful morning in lower Manhattan more than four years ago, I'd just as soon not repeat the experience. If the question on the table is whether it is legal for the executive branch to listen without warrants to phone calls between people who repeatedly chant "Death to America," then I guess I'm for declaring it respectful of our laws and getting on with it.

But insofar as the surveillance program has been rendered moot, let's by all means pull over to the side of the road and have a long national conversation about it. (But don't send your thoughts to Sen. Specter via the Postal Service, as his Web site contains the following Important Notice: "Security restrictions now cause considerable delay in processing postal mail sent to Senate offices.")

The issues at the center of this dispute are in fact intellectually interesting, having to do with separation of powers, legal rules versus legal discretion, and competing interpretations of the Fourth Amendment and Article II of the Constitution.
But let us here consider something that tends to fall outside legal considerations--effective management. On Tuesday, Vice President Cheney said, "You can't take 535 members of Congress and tell them everything and protect the nation's secrets." Mr. Cheney was reflecting the view, which arose at the time of the Founding Fathers, that foreign policy was disorganized under the Articles of Confederation and belonged under a strong executive. A primary reason for calling the Constitutional Convention of 1787 was the mess Congress had made of managing foreign policy.

Then later in the week GOP Rep. Heather Wilson suddenly became famous for presumably dissenting from the White House line and demanding a "complete review" of the surveillance program. Rep. Wilson, who chairs a House intelligence oversight subcommittee, is rightly regarded as one of the House's savvier and more serious members on national security issues. But . . .

Rep. Wilson is in a neck-and-neck re-election fight back in her New Mexico district with state Attorney General Patricia Madrid. Rep. Wilson is under pressure because her district is heavily Democratic; the opposition's primary line of attack has been that Rep. Wilson isn't sufficiently "independent" of the Bush White House. Right after her highly publicized NSA declaration this week, the Democratic Congressional Campaign Committee got out a statement that "Rep. Wilson is now and has always been a rubber stamp for the policies of the Bush-Cheney administration."

What this means is that the local politics of Albuquerque is now setting national security policy. Why them? Why not accord the same overweighted political status to the Third District in North Carolina, which happens to house Camp Lejeune? The primary argument against letting Albuquerque set national security policy through Rep. Wilson's political problems back home is found in that earlier statement from the 9/11 Commission: You simply cannot disperse policy formation in this area across all branches of government in the guise of checks and balances and then expect efficient management in, say, stopping terrorists. Nor can you present the paperwork required to satisfy "probable cause" before a FISA judge prior to every proposed antiterror wiretap and not risk flipping the competition's outcome in favor of the terrorists.

Historically, the proper path for working out these national security disputes hasn't been Sen. Specter's preposterous appeal to let some judge design the nation's antiterror policy but rather through informal political negotiation between the executive branch and Congress. That only works, though, if the presidency has someone who will negotiate in good faith. Who's that? Hillary Clinton, already on the campaign trail in front of the UAW Wednesday, contributed: "You cannot explain to me why we have not captured or killed the tallest man in Afghanistan." Well for starters, he's probably not making phone calls.
At the Judiciary Committee hearings Monday, Sen. Leahy announced: "Mr. Attorney General, in America, our America, nobody is above the law, not even the president of the United States." Got it. But here's the bottom line on the surveillance program. It was going to work, and help lessen the chance of another atrocity in our America, only if it stayed secret. The odds of it staying secret would diminish as its existence spread through the Congress and judicial system. Now it is public, and its utility is about zero. What's left is the legal issue of whether it violated FISA. We can only look forward to the answer.

Mr. Henninger is deputy editor of The Wall Street Journal's editorial page. His column appears Fridays in the Journal and on OpinionJournal.com.

[SonomaCat]

I admit, I only read the first couple paragraphs, but when a writer parrots the intellectually indefensible idea that Al Qaeda had no earthly idea that we had the technology and intent to listen in on phone calls before our super-secret plan was exposed by those evil civil libertarians, I have to dismiss the whole article.

If the terrorists are dumb enough that they wouldn't be aware of this 80 year old technology, I'm really not too concerned about them. Unfortunately, I think they are smarter than that, and I'm quite sure these revelations that we have been listening in on phone conversations is certainly not news to them (especially since we -- the Bush administration -- have talked about doing it in the past to remind us how good a job they are doing). Al Qaeda might be surprised that we are doing it illegally, but that is completely meaningless to them, as they already know that we COULD do it legally if the administration wanted to.

Just get a warrant, guys, and then wiretap all you want. Please quit insulting our intelligence with these fear-based talking points that don't stand up to even the slightest skeptical review.