A question of legality and desirability

Letter to the editor

Posted: Monday, February 27, 2006

In her Feb. 20 letter, Ms. Andree unfairly suggested I "brush off" the question of legality. There is a genuine debate about whether the president has authority to implement the terrorist surveillance program, and if so, the true source of that authority. Many of the best constitutional scholars are divided on the issue, and most lawyers I know, myself included, remain undecided. That issue is far from resolved, and I am not here to opine on that. Meanwhile, I would caution everyone to refrain from adopting the speculative and partisan opinions of reporters and pundits, as none yet have access to the necessary information.

There is an important distinction between the program's legality and its desirability, and Ms. Andree has misinterpreted the American Bar Association's resolution as taking a stance on the latter, when it is solely concerned with the former. The resolution, without answering the question of whether existing practices comply with the Foreign Intelligence Surveillance Act, blandly opposes electronic surveillance that would not comply. Moreover, the resolution "urges the President, if he believes FISA is inadequate to safeguard national security, to seek appropriate amendments or new legislation." In other words, the resolution is asking the president to ensure legality through Congress, while continuing to protect America by intercepting calls from known terrorists.

The debate in Congress has also been more about legality than desirability. Many lawmakers think the authority resides in them, and the administration disagrees. But I have yet to hear any member of Congress seriously suggest we stop the warrantless interception of calls from known terrorists. Rather, they urge the administration to concede the source of authority, and work with them to make the existing practices legal in their eyes. They advocate changing the law, not the practice.

Public polls on desirability run the gamut depending on how the questions are phrased. "Domestic spying" receives little support, while "warrantless interception of terrorist calls from abroad" is well supported. But the Zogby "impeachment" poll hinges on legality rather than desirability. Read it, and think about it.

Finally, Ms. Andree surely knows I did not disparage all those who oppose the terrorist surveillance program. Rather, my remark applied to the frothing imbeciles who strip important context from Alberto Gonzales' inconsequential slip of the tongue, thereby deliberately changing the meaning of his lucid statement, and unthinkingly mistake this absurdity for a rational cause to hate the administration.

Mark Aase

Los Angeles

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