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Yesterday around 2:30 Eastern Time the news hit that the president had decided not to renew a program of “domestic spying” on terrorism suspects. Once again, the Drive-By Media — this is a Reuters story — continues to misrepresent what the program is! It is not, and it never was, “domestic spying.” We’re going to lose this war if we cannot convince the American people, if the American people cannot be told accurately, what the program is that is designed to keep America safe. Anyway, that’s a little beside the point. The Reuters story said that President Bush “has decided not to renew a program of domestic spying on terrorism suspects, this according to the Attorney General, Alberto Gonzales, ending a law enforcement tactic criticized for infringing on civil liberties. Gonzales wrote a letter to congressional leaders which said the president has determined not to reauthorize the TSP, the terrorist surveillance program when the current authorization expires.”
Well, I blew a gasket. Everybody blew a gasket! Everybody assumed that the administration had caved once again, bowing to liberal critics for reasons that we can only guess and speculate — and there were people, and I must tell you, I was one of them. This program has been under constant assault ever since it was leaked and announced in the New York Times. There has been an ongoing effort by a shadow government — at least that’s my opinion — to do everything possible to sabotage victory over this enemy. Throughout this two-year period, the whys, the motivation for that have not been so interesting to me as has been the effort to alert people that that’s what’s going on. This is a program… 9/11 happened! We’re doing everything we can to try to find out when such an attack might happen again, and you do that by monitoring terrorist phone calls, phone calls from known terrorists — outside the country, talking to people inside the country or vice-versa; terrorists in this country, known terrorists — and their phone numbers talking to people outside the country.

This whole thing was misrepresented as “domestic spying,” that was portrayed as Bush in the White House listening on your phone calls and the phone calls of liberals. Frankly, liberal lives are so boring, who would want to waste time listening to their phone calls? Anyway the whole thing was under assault for two years, and a whole bunch of people were doing everything they could to defend the program on the basis of national security, under the basis that the president is the commander-in-chief and that the judiciary, FISA Court or anybody else, cannot sit there and tell him how to operate wars, cannot operate commander-in-chief duties. They don’t have the constitutional right to intercede in national security matters by fiat, including the FISA Court. Well, when this news hit yesterday, I don’t know about a lot of other people, but I felt sold out, and what is the point of defending what you believe in as far as what the administration is doing when eventually you’re going to cave?
Well, since about 2:30 yesterday afternoon, there has been a little bit more brought to light on this. The White House says that they didn’t get out in front of the news quick enough to explain what had been going on. Their basic point is that this is a win for them but they can’t explain how because when you ask them pointed questions, they say, “It’s classified. Sorry, we can’t answer that. You’re just going to have to accept the fact that this is a huge win. We got the FISA Court to agree with what we want to do in perpetuity.” Well, I understand that. Nobody ever thought the program was going to end. It’s the process here that is of concern to people like me who are originalists when it comes to the Constitution. My fear yesterday was not that the program was going to end, but that the president was surrendering constitutional authority to the judiciary in these matters when that is not necessary and not required. I said, “Why is he doing this? Are we back to the New Tone? Are we back to trying to make the liberals love us? Are we trying to clear the decks of everything controversial here so that the only argument on the table is Iraq?”
The administration and — and some people see it a different way — think that it is a huge win. But if you look at a portion of the letter that Gonzales sent to the Senate judiciary committee, there’s this little passage in it: “In the spring of 2005, well before the first press account disclosing the existence of the terrorist surveillance program,” and that would have been the New York Times leak, “the administration began exploring options for seeking FISA Court approval.” Well (sigh), I read that, and I said, “Why do you need it? You’ve been doing the program for two years or a year, and you’ve been telling people that it’s totally legal and aboveboard. Why are you seeking FISA Court approval, which is what the left was demanding?” The way the left is going to see this is blood in the water! They’re going to see, “A-ha! The administration is admitting that all along they know they’ve been on the outer edges of the law here, and they’re trying to get within the law now,” and the impression left was, by this letter, this little passage in Gonzales’ letter is that the administration knew all along that they were in trouble over this.

One of the reasons why was they knew that the FISA Court couldn’t cooperate on streamlining the process. You know what the legal system is like. You intercept a phone call and you need fast action on it; you gotta go to court and get a warrant and all this. By the time all that process stuff happens, you may have lost the lead. You may have lost the opportunity. And the Bush people were telling us two things, the FISA Court would not cooperate on streamlining the process for warrants once they had made a successful intercept and they were also telling us they could proceed without the authority to do it — or they had the authority to proceed without it. As such, a bunch of people began spouting that line for them: “Well, they don’t need this kind of authority,” and they don’t. This is the bottom line: they still don’t need that authority, and yet now they’ve gone back, and the story is the FISA Court is brought on board; this is a big win and this is a program in perpetuity for every president now on and forever.
Nobody questioned that. We’re just interested in the process. If you asked them, “Well, do you need to get warrants?” They say, “I can’t answer that because it’s classified.” When you ask them about the process or how this is a big win they — because the information is classified — can’t tell you. So they can’t sell this. The very administration who’s responsible for selling this has got their own hands tied by the nature of the fact that this is supposedly classified data. So what we got yesterday was the Bush administration arguing for years that the program was critical to national security and fell within the president’s constitutional authority. Now, with the news that hit yesterday, to turn around and appear to surrender presidential authority was just mind-boggling. (sigh) It seemed the administration was repudiating all the arguments that it had made, both in the public and in testimony that the program was okay and legal. (sigh) So, anyway, it still is a disturbing thing because the things that we all need to sell this thing can’t be provided, including the administration.
Now, let me give you my perspective on this, just so you are clear on my context here. I’m an originalist in the Constitution. I believe what it says, and I don’t think the courts have any authority to review the president’s authority to intercept enemy communications during wartime. They didn’t even try this against Lincoln! They tried to shut down Lincoln every which way they could. They would have never thought this about FDR. FDR was opening mail during World War II, and nobody said a word about it! In fact, at the hearings today, Gonzales got his rear end kicked about that very thing: “Was the president opening mail?” Leahy and Specter smell blood in the water. If this was to mollify critics, it’s done just the opposite and it always will do just the opposite of mollifying the critics, because you can’t give your critics enough! When the critics are liberals, you cannot give them enough! If you give them everything you want… It’s absurd to even discuss it.

But the courts in the Constitution have no authority to review the president’s authority to intercept enemy communications during wartime and to confer such authority on the courts is how we get to this current situation, and I don’t know what authority’s been conferred on the FISA Court because we can’t be told about this, but the net effect could be to unleash judicial review of all kinds of war decisions that the president is solely empowered to make. When the judiciary gets involved, the way it’s composed these days, we’re going to have nothing but a bunch of… well, other commanders-in-chief imposing their own personal policy preferences on something like war, which they don’t have any right to be involved in. Now, some people say — and this gets really thick here. Some people look at the Fourth Amendment and the reasonableness aspect or clause of the Fourth Amendment that says we have a reasonable right to be safe in our persons, to guard against searches and this sort of stuff.
Some people say, “Yeah, these searches must be reasonable, and they apply to citizens even in the war context.” I don’t know that the Fourth Amendment has anything to do with the war context. That’s the argument. But the intellectuals are getting hold on of this and they’re putting it in their meat grinders and by the time they get finished with it nobody will be able to understand it. It just seems to me Congress has constitutionally authored to end the war, to de-fund the NSA, to de-fund this program. Congress can do that, but the courts can’t, and the Congress isn’t going to do it. They’re in the process of going through meaningless but destructive shows of resolutions and votes on resolutions that don’t count and don’t do diddly-squat, other than feed the morale of the enemy — not only the enemy over there, the enemy within our own borders.
If our government wants to use information it gets through an NSA intercept to prosecute somebody criminally, now, then the Fourth Amendment and due process kick in, but the Fourth Amendment cannot apply in wartime to enemy combatants intercepting their messages! Now, after you’ve done that and you want to prosecute somebody criminally for what you’ve learned, then the Fourth Amendment can kick in. But the Fourth Amendment, like the whole Constitution, is not “a suicide pact”! The Fourth Amendment cannot sit there and serve as an obstacle to national security, and neither should the courts in this country be able to do that. They are not elected and they are unaccountable. (sigh) I gotta take a break here. Some things are spiraling out of control here, be it genuinely or in a PR sense, and in politics PR, perception is reality. I have just a little bit of advice for the administration.

RUSH: Well, now, this, frankly, is not helpful. A story from the Associated Press: “The presiding judge of the FISA Court…” By the way, for those of you in Rio Linda, FISA stands for Foreign Intelligence Surveillance Court. FISA is the FISA Act, which established the court. It’s a super-secret court out there. “The presiding judge of the FISA Court said she has no objection to disclosing the legal orders and the opinions about the program that targets people linked to Al-Qaeda, but the Bush administration would have to approve release of the information.” At least this judge did not say that she has no objection to disclosing illegal orders and opinions about the program on “domestic spying”! At least the judge got it right here as to what the program is. But the import of this is that the Bush administration is saying (summarized), “Well, we can’t reveal any of the process information, how we got to where we are here that’s a ‘win-win’ because it’s classified.” The judge here has just said, “I don’t care. It doesn’t matter to me if the release of the information, but I need the administration’s permission to do so.”
The administration says it can’t say what’s up. The court says, “Sure it can! We just can’t do it without the administration’s approval.” So now we’ll go through the next dance on this.
RUSH: Now, here’s an interesting story. This is today. This is the San Francisco Chronicle, and it’s actually by one of their local reporters, Jennifer A. Dlouhy, and this may provide a clue as to what the new deal with the FISA Court is (he said hopefully). “Attorney General Alberto Gonzales on Wednesday warned federal judges not to meddle in cases involving national security…. In a speech to the conservative think tank American Enterprise Institute, Gonzales said federal judges are not ‘equipped to make decisions about’ actions the president takes in the name of preserving national security.” Amen! Yes! Hubba hubba! Not only are they not in the position to know — they’re not equipped to know — they’re not constitutionally entitled! Pardon me for yelling. Gonzales said, “A judge will never be in the position to know what is in the national security interest of the country.”
Yet, after warning judges not to meddle, then we heard the news about this new deal with FISA, but we don’t know what the details are. We know that the program’s continuing, but we don’t know just how big a role the judiciary has been given in this. This may indicate (again, he said hopefully) that the FISA Court has granted the administration more power. I don’t know why they wouldn’t want to say that if it’s true. We’re all flying blind here on this, it’s our instincts guided by intelligence versus what we’re being told, and we’ve gotta make a decision here on what we follow. It’s audio sound bite time. The attorney general got roasted today up on Capitol Hill at a Senate judiciary committee hearing — and don’t forget, Leaky Leahy, Pat Leahy is now the chairman of the committee. Specter, the ranking Republican on the committee, and Leahy, they could not wait to have at Gonzales today. I have a couple bites here. Specter first.
SPECTER: In your letter to Senator Leahy, the chairman and me, noted that you have been working on it since, uh, summer of 2005 — and it is a little hard to see why it took so long, and we will want to inquire further into the details as to the process that, uh, that you used.

RUSH: Well, I understand Specter wanting the details of the process here. That’s fascinating. What’s more interesting to me about the fact that the administration — Gonzales in his letter — said they’ve been working on it since December 2005. Why work on it at all if their position was they were totally within their constitutional rights to conduct the program the way they were? See, that’s the big bugaboo here, and Gonzales does admit that in his letter to these guys. That’s what Specter is talking about. Why, if all this time we’ve been told this is a hunky-dory program, this program is legal; the president has his authority; other past presidents have used this authority, then why spend these two years responding to the critics saying it was a violation of civil liberties, human rights, and all that other gobbledygook that the left throws in? Specter was more curious why it took so long to get to the position he wants: which is the courts being able to shut down the administration, an administration, any time. Gonzales next had a question from Leahy who said, “Is the Bush administration opening Americans’ private mail without a warrant? Yes or no?”
GONZALES: Senator, the answer is no. To my knowledge, there is no physical search of mail ongoing, under either the authority to use military force or the president’s inherent authority under the Constitution, except as otherwise authorized by statutes passed by the Congress.
LEAHY: You understand some of our concern because of the willingness in the — and we may disagree on this — but the willingness of the administration to ignore FISA in wiretaps. Are you saying that they’re following FISA in mail openings?
GONZALES: What I’m saying Senator is that, to my knowledge, there is no ongoing physical searches of mail under the authority we claim under the authorization to use military force or under the president’s inherent authority under the Constitution. As far as I know, that’s not going on.
LEAHY: None ongoing? Has there been some?
GONZALES: Not that I’m aware of, no, sir.

RUSH: Can we go back and look at the Roosevelt administration? It was part and parcel of national security, and the country? I don’t know if they even knew it at the time, but those who did were all for it. See, this is what is so maddening! We’ve got people like Senator Leahy and the whole Democrat caucus in the Senate joined by some Republicans, who seem hell-bent on hamstringing every effort to protect this country if it means they can destroy Bush. You wouldn’t believe the Democrats who in the last two or three years said, “We need more troops in Iraq! We need more troops in Iraq!” I’ve got the sound bites coming up. “We need more troops in Iraq.”
Bush comes out for more troops in Iraq, and every one of them changes his position from the new House intelligence committee chairman, Sylvester Reyes, to Howard Dean to Joe Biden, Chris Dodd, Hillary Clinton. This is the thing that’s troubling about this, is that there is an ongoing effort to sabotage this administration, and rather than — see, it just appears that the administration doesn’t realize this, to us. We think, “How can they not know that there is an effort out there to not just defeat them policy-wise but to destroy them?” and you come along and announce the end of the FISA program, the TSP program as it’s been known and can’t tell anybody what to do about it even though it’s really good and a big win (sigh) you’re asking people to accept it on faith. Let’s grab some phone calls. Dennis, Lindale, Texas, you’re up first today, sir. That’s an awesome responsibility, by the way.
CALLER: Well, thank you very much, Rush. I’m going to do my best. Mega dittos from here in Texas.
RUSH: Thank you, sir.
CALLER: What I was wondering is, is it possible — just from your view; you’re going to know a lot more about this than I do, but is it possible — that the FISA Court has granted President Bush more authority, more free hand, but then President Bush doesn’t want to talk about it for the same reason he didn’t want the whole thing brought up to begin with: it lets the terrorist know what we’re doing?
RUSH: Yes, that is possible. That’s entirely possible. They have been asked that very question. They say, “We can’t answer, national security, classified information,” which I understand. This is a program designed to catch bad guys. You can’t go out there and say, “Here’s how we’re going to do it,” run over it and so on, but they’re really taking a beating on this from all sides because the way it was initially reported was they had caved; they had ended the program, that the program that they had said was legal, constitutionally and every other way, was fine and dandy. Now we learn that they’ve been trying to alter it to respond to what the critics were saying about it and so forth. It just us pull our hair out. To hell with “satisfying critics on this,” when you’re talking about national security, especially these critics who can never be satisfied; they can never be brought on board with this.
CALLER: Right.
RUSH: But, yeah, it’s entirely possible that’s happened.
RUSH: All right. Thank you very much, Rush.
CALLER: You bet. The presiding judge of the FISA Court doesn’t seem bothered by any of this. She’s willing to talk about this. But I understand the administration wanting to keep this stuff all hunky-dory national security. Here’s the one thing that you can fall back on, if you’re one of these people that’s hot under the collar about this. The one thing this administration has not caved on, the one thing — that’s why this was so upsetting yesterday to some people: the one thing they have not caved on — is the war on terror and national security and defense. To believe that, “Okay, they have now because they seem to be caving on some other things,” would be a stretch. I think if there’s one thing this administration is hell-bent is going to happen is that while they’re in office, we’re going to be victorious in the war on terror and we’re going to be vigilant.

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