January 31, 2006,
Democrats are both outraged by President Bush's National Security Agency surveillance program and content to see it continue. They are at this incoherent pass because their reflexive hostility to the program is tempered by the dawning suspicion that they might be on the wrong side politically of yet another national-security issue thus, the NSA Straddle.
Asked on ABC's This Week to respond to a Karl Rove speech saying that Democrats disagree with President Bush that al Qaeda members should be monitored when they call somebody in America, Sen. John Kerry declared, "We don't disagree with him at all." But he went on to blast the NSA program as illegal. Why not, therefore, cut off funding for it? "That's premature," Kerry insisted.
Democrats are the first party ever to talk of impeaching a president for creating a program they themselves seem to support. It's as if they had denounced Watergate, but stipulated that there was nothing wrong in principle with breaking into the office of Daniel Ellsberg's psychologist. "We're prepared to eavesdrop wherever and whenever necessary," said Kerry, sounding ready to don earphones himself. Howard Dean agrees: "I support spying on al Qaeda, and I think every Democrat in America thinks we ought to attack al Qaeda, and spy on them."
Of course, Democrats say such spying has to be legal. Who disagrees with that? The wiretapping programs in the Nixon, Kennedy, and Johnson administrations that were so famously abused were extremely closely held. The Bush administration kept the NSA program secret, to be sure, but it was routinely reviewed by the top career lawyers at the NSA and the Department of Justice, who have no truck with lawbreaking.
The Democrats' confusion extends to the Foreign Intelligence Surveillance Act, which they argue the administration is violating. On the one hand, they praise the act as a bulwark of liberty. On the other, they suggest that warrants from the FISA court are an easily obtained fig leaf. Howard Dean notes incredulously that the administration isn't operating the NSA program under the auspices of FISA, when for more than 25 years the FISA court has approved 19,000 warrant requests and turned down only five.
Democrats want to portray the FISA regime as readily stretched to encompass the spying program in order to accommodate their NSA Straddle. It allows them to denounce the program as flagrantly illegal, while supporting the program in theory, because with a little cover from FISA, it would be perfectly legal. Would that it were so easy. If the NSA program is compatible with FISA, surely the administration would avail itself of that law. It hasn't been reticent about obtaining FISA warrants, the number of which has jumped since Sept. 11.
To obtain such a warrant requires a showing of probable cause that the person to be monitored in the U.S. is a member of a terrorist group. There are two reasons for the administration not to go this route with the NSA program. One is speed. It takes time to assemble the warrant application and get the official sign-offs. The other is that the evidence for a showing of probable cause might not exist. If a member of al Qaeda calls someone, it doesn't necessarily make him a terrorist. The administration is monitoring the call anyway, and if evidence shows up to support a finding of probable cause, presumably then it will get a FISA warrant on the call's recipient.
The NSA program exists outside of FISA, but it needn't be in violation of it, if the target of the surveillance is a person outside the U.S. and the surveillance itself is taking place overseas. But there is no doubt that it is an aggressive program, and as the debate over it ripens, a key question will likely be whether it is acceptable to monitor calls to people in the U.S. we have no reason to believe are terrorists. Expect the Democrats' answer to be another straddle.