They began by portraying it as a radical and unprecedented expansion of presidential power. Senators Pat Leahy and Ted Kennedy, leading the charge, introduced a Senate resolution contending that there was no legal justification for warrantless surveillance. Sounding the same theme, the dependably pro-Democratic Center for American Progress issued a legal analysis condemning the surveillance as “an illegal and unnecessary intrusion into the privacy of all Americans.”
Unafraid of hyperbole, Rep. Rob Andrews of New Jersey has decried the surveillance program as “the most expansive, frightening, and unreasonable expansion of government power since Japanese Americans were unlawfully interned in the Second World War.”
But the facts – and even some prominent Democratic officials – were not on their side. Jamie Gorelick, a deputy attorney general under President Clinton, had testified before Congress in 1994 that the “president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.”
Legal experts also found in the administration’s favor. John Eastman, of Chapman University School of Law, pointed out that “similar arguments have been advanced, successfully, by every administration since electronic surveillance technology was developed.”
Indeed, no less an icon of the political Left than Jimmy Carter had authorized warrantless electronic surveillance to secure the conviction of two men for spying for Vietnam in 1977 – a fact that did not prevent the publicity-craving Carter from denouncing the NSA program as “disgraceful” and “illegal.”
The American public, too, sided with the president: An ABC News/Washington Post poll last spring found that Americans by nearly a 2-1 ratio considered the NSA surveillance program justified.
Having lost the battle in the court of public opinion, Democrats, as is their wont, turned to the federal courts for salvation. Their strategy was rewarded. Ruling on a suit brought by the ACLU in mid-August, a federal judge decreed that the NSA program was “unconstitutional” and called for its immediate suspension.
But alert skeptics noted that the judge, U.S. District Judge Anna Diggs, was not exactly a model of judicial independence: A Jimmy Carter appointee, Judge Taylor also serves as a trustee Community Foundation for Southeastern Michigan in Detroit, an organization that in recent years has given at least $125,000 to – yes – the ACLU.
In Democratic eyes, though, Judge Taylor became an instant heroine. Nancy Pelosi, joining a chorus of Democratic approbation, hailed her ruling as a “repudiation” of the Bush administration’s position on NSA surveillance. (The administration is appealing.)
Relentless carping from the Democratic side has served to obscure a crucial fact: The surveillance program has made it easier to crack down on terrorists before they strike. CIA chief Michael Hayden has testified that prior to the introduction of warrantless surveillance, the September 11 hijackers would have enjoyed special protections that would have made it impossible for investigators to uncover their mission.
It should not be surprising in this connection that the recent plane-bombing plot was foiled by British authorities in part because electronic surveillance in Pakistan and Britain – not unlike the kind authorized by the NSA program – led them to the eventual suspects. To further appreciate the significance of the program, one need only consider that some of the British suspects had reportedly made calls to the United States.
For many Democrats, however, partisanship trumps pragmatism. This partly explains last month’s near party-line vote against the Electronic Surveillance Modernization Act – even after it was amended to grant Congress a larger role in overseeing surveillance.
Elaborating on his opposition vote, Massachusetts Democrat Edward Markey blamed the president: “The president wants to go on a fishing expedition, but he doesn’t want to get a fishing license,” he said. Thus, in Markey’s bizarre calculus, terrorism was no more serious than fishing. As an illustration of the Democrats’ fundamentally frivolous approach to national security, the statement was hard to beat.
None of this is to suggest that Democrats are categorically opposed to intelligence gathering. This June, for instance, Joe Biden, the senior Democrat on the Senate Foreign Relations Committee, demanded an “independent commission” to investigate Guantanamo Bay on account of its allegedly inhumane treatment of detainees.
Indeed, to hear much of the Democratic leadership tell it, the detention facility is an evil of world-historical proportions. Certainly that was Sen. Richard Durbin’s view when several weeks after Biden’s proposal he outrageously pronounced Guantanamo something that may “have been done by Nazis, Soviets in their gulags or some mad regime…”