The Honorable Peter Hoekstra has taken to the august (virtual) pages of National Review to further muddy the waters of the debate over Joe Klein’s column. It would take a lot more time than I’ve got to untangle all the distortions and obfuscations of his arguments, so let me just jump to his particularly egregious concluding paragraphs:
It’s hard to imagine General Eisenhower going to court to ask for permission to conduct the D-Day invasion on the off-chance Americans might be on the beaches of Normandy. Yet this is exactly what Democrats want to force Admiral McConnell to do to conduct terrorist surveillance.
At the end of the day, we should be honest that this is not a legal debate, but a political one. It highlights the fact that Democrats believe that lawyering-up foreign intelligence to guard against every imagined or potential civil-liberties concern is more important than ensuring that we have the full capability to conduct quick and effective surveillance of foreign al-Qaeda targets in foreign countries. I’ll welcome that debate anytime.
Now, in the first place, absolutely no one is proposing that the FISA court have jurisdiction over wiretapping activities that occur overseas. If the US Army wants to tap an Iraqi cell phone tower, or if the CIA wants to tap an underseas optical cable outside of the US territorial waters, neither the current FISA law nor any proposed changes would require court oversight of those activities. So the Eisenhower hypothetical is a total non-sequitur. Unless General Eisenhower somehow needed to tap American phone lines in order to carry out the D-Day invasion, none of the bills under consideration would have had any effect on his activities.
He says he’s worried about the ability to “conduct quick and effective surveillance of foreign al-Qaeda targets in foreign countries.” But the only time the Restore Act would require judicial scrutiny of “surveillance of foreign al-Qaeda targets in foreign countries” is when that surveillance requires ordering American telecom companies to install wiretaps on American soil, and when one end of that communication is likely to be on American soil. That’s a tiny fraction of our foreign intelligence-gathering activities, and so the Restore Act would place a correspondingly small burden on the executive branch.
Finally, when Hoekstra talks about “lawyering-up foreign intelligence,” he neglects to mention that every single proposed bill, the Restore Act included, expands the executive branch’s ability to engage in warrantless surveillance and restricts the courts’ oversight role compared to the status quo. Nobody is “lawyering up” anything. The debate is between Democrats who support only modest reductions in judicial oversight and a White House that is demanding the complete emasculation of judicial oversight of domestic-to-foreign eavesdropping.