One of the most revealing aspects of the NSA scandal has been the way in which Bush followers have been running around shrieking that national security has been damaged and treason has been committed by the New York Times. All of that is based upon the Times' disclosure that Bush ordered the NSA to eavesdrop without judicial oversight (rather than with it). Now that the initial screaming and demands for hangings are dying down a little, his followers are confronted with the fact that this accusation makes no sense whatsoever, since whether we eavesdrop with judicial oversight or without it can’t possibly be of any use to terrorists.
... So the diabolical, unprecedentedly dangerous terrorists who pose an existential threat to the U.S. that is equal to or greater than that posed by the Soviet Union are, in John’s mind, so uninformed, unsophisticated and stupid that they never heard of or knew about the 30-year old public law that defines the powers of the U.S. Government to engage in surveillance for foreign intelligence purposes. They never heard of FISA or knew anything about it until the Times published its story.
And now the cat is out of the bag – now, thanks to the Times, they know that we have this law called "FISA" and have become aware that we do this thing called "eavesdropping" and now they will be able to thwart us. Is that supposed to be satire?
GREENWALD'S HEAVY-HANDED SARCASM ASIDE, HE REALLY ARGUES THAT WHAT BUSH AUTHORIZED WAS CONSTITUTIONAL AND LEGAL. How did he do this? Simple.
This post argues that the leak coudn't have harmed USA security because al Qaeda and its affilates must presumably know that they are being eavesdropped upon. If this is the case, then the eavesdropping is NOT unreasonable and is therefore entirely CONSTITUTIONAL according to Article IV - which only prohibits UNreasonable searches and seizures.
As you may know, there are at 28 types of warrantless searches and seizures which are routinely done by law enforcement all the time
. Among the many reasons courts have always permitted these is the fact that they are each reasonable.
Therefore, since nobody communicating with al Qaeda or their affiliates can reasonably expect their conversations to be private, the POTUS-ordered NSA intercept program was constitutional.
It is also INCONTROVERTIBLE that the leakers broke the law. The Intelligence Whitleblower Protection Act signed by Clinton in 1998 provides a legal way for a whisleblower to "blow the whistle" on questionable government activity which is classified
. The leakers did NOT use this means; they went to the press. This is against the law. Plain and simple. The leakers broke it.
[Which leads to this question: WHY DID THEY DO IT THIS WAY?! The answer is simple: They knew that the intercepts - although controversial - were legal and constitutional, and that therefore they wouldn't get anywhere using the legal whistle-blowing process. Therefore, they leaked it to the NYTIMES right before the 2004 election because they thought it could harm the president's re-election bid. This is the only logical explanation for why they leaked and when they leaked. It's another example of how the clandestine community attempting a virtual coup d'etat
I also take issue with Greenwald's argument that the NYTIMES and the leakers are not traitors (Greenwald argues that the leak was harmless to our national security because jihadoterrorist must already assume they don't have secure communications. And he argues that a harmless leak can't be treasonous.) HE IS WRONG AGAIN.
The NYTIMES committed treason because the only beneficiary of the leak was the enemy. HOW? Though the leak may not have been an earth-shattering NEWS to the jihadoterrorists, the leak nevertheless CONFIRMED to the enemy what they may have merely presumed or suspected.
Confirming details of the speed and range of intercept activity does actual harm to our efforts to collect useful and ACTIONABLE intelligence, and that obviously aids the enemy. HOW?!
Confirmation alerts the enemy that they MUST seek other less interceptible means to communicate - such as by courier, or by other means. They CAN do this, AND these extra efforts make it tougher for us to learn about and prevent attacks - ESPECIALLY HERE IN THE USA. This is incontrovertible. And it proves potential HARM - of a potentially catastrophic level. (Remember, a successful terrorist attack can cost US thousands of lives and trillions of dollars and tens of thousnads of lost jobs.)
In conclusion: Greenwald UNINTENTIONALLY helps prove that: (1) the intercepts are constitutional; (2) the leakers are criminals; and (3) the leaks hurts national security and aided the enemy. Thanks Glenn Greenwald. I hope your comrades on the Left learn have learned something as well.
UPDATE: JOE KLEIN of TIME
corroborates my analysis (hat tip the invaluable and brilliant POWERLINE
It would have been a scandal if the NSA had not been using these tools to track down the bad guys. There is evidence that the information harvested helped foil several plots and disrupt al-Qaeda operations.
There is also evidence, according to U.S. intelligence officials, that since the New York Times broke the story, the terrorists have modified their behavior, hampering our efforts to keep track of them—but also, on the plus side, hampering their ability to communicate with one another.