Last Wednesday, December 21, the Wall Street Journal published an editorial called Thank You for Wiretapping (it appeared in the online edition the day before). The piece addresses the kerfuffle kicked up by the leak last week of the National Security Agency’s wiretaps on the international phone calls of Al Qaeda suspects. The press’s staunch belief in its God-given right to compromise national security was immediately validated by the response on Capitol Hill, where a variety of Senators started carrying on about the near-fascist illegality of such a draconian measure and the despotic nature of a President who would dare authorize such a thing.
It’s times like these that I consider getting fitted for a burqa.
The President’s critics hang their argument on the Foreign Intelligence Surveillance Act of 1978, which instituted the requirement that the President first get the approval of the court before proceeding with a wiretap. But FISA is not by any stretch of the imagination a blanket requirement. As the WSJ piece explains, “FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed”. The courts have been perfectly clear and consistent in upholding the President’s authority on this matter:
[In a 2002 opinion by a special panel of appellate judges established to hear FISA appeals], the court noted that in a previous FISA case (U.S. v. Truong), a federal “court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” And further that “we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”
Yet in a collective frenzy of malignant ignorance, Senators (and, inevitably, media pundits) are falling all over themselves to exhibit their refusal to look at precedent. It is better, apparently, to sound righteous than to be right. And these are not cafe pundits shooting their mouths off; these are lawmakers. Oscar Wilde would have enjoyed this spectacle: it is the ultimate instance of style trumping substance. Better to work yourself into a media-friendly lather over the civil rights of those who wish to take away all our civil rights than to do the practical work of ensuring that those rights stay protected.
The insidious part of this story is the determination to protect the rights of enemies of the state rather than guard national security, even when there is no legal or constitutional impediment to appropriate steps being taken. I’ve been mulling this woolly thinking over for four days now, and I can only conclude that these Senators and pundits place as their ultimate value feeling good about themselves. True, the law doesn’t object to this kind of surveillance, but it makes us feel dirty, so we’d better not do it. At least we can look ourselves in the mirror. And hey, what’s the worst that can happen?
Perhaps their motivation is in fact a kind of European-style self-defense: the Al Qaeda suspects will like us better for having treated them with such deference. If we take another step or two down this road, we get to England, where pockets of the body politic have concluded that maybe they’ll like us (read: won’t come to kill us) if we preemptively curtail our own rights in the name of tolerance. Hence the British banning of piggybanks for fear of offending delicate Muslim sensibilities – and, astoundingly, the banning of Piglet (in Britain!), for the same reason. We can see the ultimate result of that kind of thinking in France: if we favor the genocidal Muslim dictator over the Western democracy-seeker, the Arabs will love us. Four years later, an intifada burns in Paris.
This is why it can be so comforting to be an Israeli. For all her faults, Israel generally recognizes a threat for what it is, and does what’s necessary – almost always entirely within the law, I might add, and when the law is exceeded, there are commissions and tribunals and consequences. Believe it or not, no one is better at criticizing Israel’s behavior than Israel herself (c.f. Haaretz, the Israeli paper of record, on any day of the week). It is Israel, who takes risks to defend them on the battlefield and in the courtroom, who is truly concerned with safeguarding fundamental civil rights, not American Senators who ignore the law, undermine the authority of the executive during wartime and exert themselves to protect the right of their country’s enemies to destroy it.
Israelis don’t have to fear that the government itself will become so benighted as to leave its own population exposed to an existential threat. As comforting as this is to Israel’s citizens, so too does it explain why Israel is universally disliked: she doesn’t have the luxury of the feel-good option.
There’s been much talk lately about Benjamin Franklin, as this year marks his 300th birthday. The Founding Fathers’ legacy appears to have become a kind of legend for many, fixed in place forever. Ben Franklin is a kind of Santa Claus figure, benevolent behind his little glasses, and above all, a permanent fixture in the American national consciousness. But everything he and Jefferson and Adams and Washington and all the others stood for, everything they bequeathed to us, can be taken away. The world – indeed, the US itself – is now laced with people who are quite methodically and shamelessly attempting to do just that. What right has any American, let alone an American Senator, to indulge cuddly, self-indulgent fantasies at the risk of such a catastrophic loss? What can they possibly be thinking?
Yet again, I find myself concluding that we’re looking at a failure of the imagination. Some things are too terrible to contemplate, and the loss of everything one’s culture treasures is the most terrible of all. So as an American-Israeli, I implore the hand-wringing Senators on Capitol Hill: open your minds to the reality of the threat, to the potential consequences of defeat. Acknowledge the necessity, unsavory though you may find it on principle, to defend yourself and your country. If you can’t bring yourself to look directly at the face of the enemy (and his smile is indeed disconcerting – the spectacle of your high-minded discomfiture is awfully entertaining), then at least look directly at everything you treasure: your own life, with all its quotidian charms and tediums, that you have had the luxury to design for yourself; your children, beautiful and hopeful and full of possibility; the work you have selected, the religion you choose to practice or not, your freedom to speak, your freedom to write, your freedom to act according to your conscience – to say nothing of your clean-shaven face, your sexual preference, your driver’s license (if you’re a woman), your wardrobe, the bottle of Chateau Lafitte you’re saving for your daughter’s graduation, the movies you rent to unwind on weekends. If it helps you see the danger by focusing on the small things rather than the grand values, by all means do so. But please – get on with it.
The premise of an existential threat – an enemy that wants you dead and your children dead, that wants the total obliteration of your nation along with all its values, culture and accomplishments, is a concept Israelis internalized sixty years ago. It doesn’t make you feel good, and addressing the threat squarely and appropriately certainly doesn’t make you popular. But it can be done within the law, in such a way that you can retain both your conscience and your national dignity. It can keep you alive – at least a little while longer.