Snow Job

Usually I don't waste my time dissecting editorials by the clowns at Fox News, but today I'm going to make an exception. Tony Snow's latest editorial at Townhall is remarkable not for its clownish idiocy (that's just par for the course at Townhall) but because it betrays a total and complete misapprehension of every important fact in the NSA spying controversy. And sadly, Snow's cluelessness seems to be widely-shared when it comes to this issue.

The headline of Snow's column is "Time for the President to Call Their Bluff." What bluff, you ask? What is he talking about? Well, halfway through the column he explains:

[T]he president ought to open his State of the
Union Address by asking Congress to give him
official authority to approve warrantless
searches of known and identified terrorists, or
of people in regular contact with those
terrorists whom authorities reasonably suspect
of plotting to commit acts of murder, terror or
sabotage. These activities ought to be subject
to monthly review by the attorney general. The
administration also ought to be required each
month to brief the top four congressional
leaders, both intelligence committees and the
head of the Foreign Intelligence Surveillance
Court.

The proposal would codify the status quo -- but
shorten the reporting periods to 30 days from
45 -- and place the impeachment crowd in a
sticky situation. The public would support both
proposals overwhelmingly, leaving the
president's most hysterical critics isolated utterly.

Snow is either engaged in a really bad straw man argument here, or he's totally clueless. I suspect the latter. He describes the status quo as "warrantless searches of known and identified terrorists, or of people in regular contact with those terrorists whom authorities reasonably suspect of plotting to commit acts of murder, terror or sabotage." Please. If these were the only people the NSA wanted to spy on, they would have no trouble whatsoever securing warrants under the current FISA framework. Indeed, if these are the real targets at issue, it's hard to understand why the government wouldn't just arrest them all. Why are we letting "known terrorists" and people "plotting to commit acts of murder, terror or sabotage" roam around freely anyway? If Snow had actually read any of the articles that he and his cohorts are busy decrying as treasonous, he would know that the surveillance program Bush authorized is much more widespread. The prohibitions of FISA were ignored precisely because the NSA would not have been able to secure warrants for the type of surveillance they were doing.

More importantly, though, Snow totally misconceives the position of Bush's critics (whose ranks include a fair number of Republicans and non-partisans). The most disturbing aspect of the story is not the spying itself, but the fact that Bush appears to have violated the law. If Bush seeks Congressional approval of the program, that won't call anyone's bluff. Indeed, it would go a long way toward alleviating our concerns. If the current program is blessed by Congress and found to be constitutional by the courts, I, for one, will no longer have any problem with it, at least going forward. Some may still oppose it on policy grounds, but the consitutional issues will be resolved. And that's what this is all about. In fact, if Congress overwhelming approves of the program and amends FISA accordingly, as Snow predicts, it will only make Bush's original failure to seek Congressional approval seem that much more questionable.

Snow ends his column with this:

A straightforward vote would shut up the rest,
highlighting vividly the gulf that separates a
president responsible for national security from
critics responsible to nobody. Civil libertarians
are right to fret about abuses of government
power, which is why successive administrations
have brought Congress, the courts and the
Justice Department into the review process.
But the Great Bluff-Caller is right about an
even more fundamental point: If we try to
fight the war on terror with eyes shut and ears
packed with wax, innocent people will die.

First of all, what the hell is Snow talking about when says "successive administrations have brought Congress, the courts and the Justice Department into the review process"? The program at issue was authorized by Bush and no one else. Courts are not involved in the "review process." And only four members of Congress were briefed on the program (and only in broad terms) and they weren't allowed to consult anyone about it. There was no direct oversight by anyone outside of the executive branch. So, again, Snow is either very dishonest or very ill-informed. Perhaps both.

More to the point, though, a straightforward vote, though important and necessary, would not "shut up" the administration's critics. Even if that vote went the President's way, it would not retroactively justify his decision to break the law; it would only beg the question of why he didn't go to Congress sooner.

Finally, Snow's line about fighting the war on terror with "eyes shut and ears packed with wax" is just third-rate hackery. This debate isn't about whether spying should take place; everyone agrees that it should. This debate is about the rule of law. The law, as it stands, provides for all sorts of domestic spying provided a very simple and highly deferential warrant procedure is followed. These procedures exist to provide some modicum of oversight, something Congress deemed necessary to prevent the sort of executive abuses that have been known to occur in the past. Put another way, the concern is not that terrorists or terrorist sympathizers will be spied upon; the law, as it stands, provides for such spying. The concern is that, absent any meaningful oversight or warrant procedure, the power to spy on U.S. citizens will be abused for political or other purposes. I'm willing to believe that the spying program at issue can be done without violating the Fourth Amendment (though I'd like to know more). I'm also willing to believe that something about this particular program makes it highly sensitive and makes compliance with FISA impractical. I'm not at all convinced, however, that even under those circumstances, the president can simply order a federal agency to ignore the law. The president of a constitutional democracy certainly faces a lot more hurdles in implementing programs than a king does, but for a good reason. The president's top duty is to see that the laws are faithfully executed. If people like Tony Snow honestly can't see why this NSA spying affair is troubling to those of us who believe in the importance of our constitutional separation of powers, then they're truly hopeless.