Warranted Warrants 

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British bobbies barely had time to slap cuffs on 24 men suspected of plotting to blow up airliners headed to the United States before the arrests became politicized in this country.

House Speaker Dennis Hastert (through his communications director) castigated Democrats for trying to deny the Bush administration the surveillance tools that “saved the day” in England. And Bill O’Reilly couldn’t wipe the I-told-you-so smirk off his face on the August 10 edition of his nightly Fox show The Factor, as he repeatedly crowed that the arrests in England vindicated Bush and the National Security Agency’s telephone eavesdropping program. To hear O’Reilly tell it, NSA spying busted the British airline terror plot wide open.

O’Reilly also invited reptilian political mercenary Dick Morris on the show to assess how the arrests would affect Bush’s political standing. In the world of Morris, political perceptions aren’t reality — they’re better, more reliable than reality. Every item is fair game: Will the new season of Dancing With the Stars rekindle consumer confidence and give a bump to the administration? Has the success of Talladega Nights solidified the dominance of red-state values in America?

O’Reilly and Hastert were shrewd to jump on the slender shreds of information available about the British arrests, because as the facts emerged, their case melted like a paleta in the summer sun. We learned that British and Pakistani officials had been closely monitoring the alleged terrorists for eight months, and didn’t even make American authorities aware of the investigation until two weeks before the arrests. We also learned that once the Bush administration became aware of the impending busts, they pressured their British counterparts to nab the suspects immediately, despite British concerns that some of the pieces were not in place.

By all accounts, the NSA wiretapping program (which allows intelligence officers to monitor phone conversations between Americans and people overseas) was employed in the final stages of the investigation, and proved helpful to British and Pakistani officials. But it stretches the definition of hyperbole to say that American eavesdropping “saved the day” when the Bush administration needed British and Pakistani officials to inform them of a plot that had been under investigation for seven-and-a-half months.

Ultimately, however, the debate should not be about the NSA program’s effectiveness. Despite the best efforts of O’Reilly and Hastert to cast administration critics as soft on terror, no noteworthy political figure has disapproved of telephone eavesdropping as a means of gathering intelligence information. On both sides of the ideological divide, there is unanimity that wiretapping is necessary and legitimate.

The real debate is about how the NSA program is carried out. Detractors would simply like for the administration to follow the law and obtain warrants for their acts of surveillance. The administration argues that terrorists move fast, therefore we have to move with them, and we can’t sit around waiting for warrants when American lives are at stake. It sounds good, unless you’re aware that federal law enables the NSA to immediately begin spying on suspected individuals, and subsequently seek a retroactive warrant from the court. That way, the war on terror is not impeded, and those of us who maintain a quaint affection for the concept of civil liberties can rest assured that the NSA program is being carried out with some judicial oversight. Everyone wins, right?

The Bush administration has never explained why it can’t work within these parameters. It’s the followup question that either doesn’t get asked or gets dodged by the fancy footwork of press secretary Tony Snow. It’s an open secret that Bush is allergic to the concept of oversight, and the post-9/11 years have frequently allowed him to sell the notion that we’re living in a dangerous new world and old laws simply don’t apply.

Ann Diggs Taylor doesn’t agree. Taylor, a federal judge in Detroit, ordered a halt to the NSA spying program in an August 17 ruling. Taylor determined that “the public interest is clear, in this matter. It is the upholding of our Constitution.” Right-wing bloggers pointed to Taylor’s liberal credentials (she was appointed to the court by Jimmy Carter), and dismissed her as a black-robed terrorist sympathizer. The administration quickly condemned Taylor’s decision, announcing that they would “seek an immediate stay of the opinion and appeal.” They defended the NSA program by saying it has “helped stop terrorist attacks and saved American lives.”

It’s an argument that can’t be proven, and shouldn’t be disputed. For all the demagogic efforts to turn the NSA program into a litmus test for patriotism, the real question is a simple one: Do we want warrantless wiretapping that future administrations can carry out with impunity against targets of their choosing, or court-approved wiretapping that protects the rights of the innocent?

What sounds better to you? 

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