Fighting the war on terrorism has been regularly made harder by the Fifth Column in the Fourth Estate giving aid and comfort to the enemy -- and undermining the Bush Administration through scare tactics and falsehood.

Today's editorial is no exception.

It was appalling to watch over the last few days as Congress — now led by Democrats — caved in to yet another unnecessary and dangerous expansion of President Bush’s powers, this time to spy on Americans in violation of basic constitutional rights. Many of the 16 Democrats in the Senate and 41 in the House who voted for the bill said that they had acted in the name of national security, but the only security at play was their job security.

There was plenty of bad behavior. Republicans marched in mindless lockstep with the president. There was double-dealing by the White House. The director of national intelligence, Mike McConnell, crossed the line from being a steward of this nationÂ’s security to acting as a White House political operative.

But mostly, the spectacle left us wondering what the Democrats — especially their feckless Senate leaders — plan to do with their majority in Congress if they are too scared of Republican campaign ads to use it to protect the Constitution and restrain an out-of-control president.

I'd love to respond to this editorial, but I'm fortunate not to need to, given this fine piece by Congressman Pete Hoekstra, who I one day hope to see serving in the Oval Office. It responds to today's editorial and yesterday's article on the FISA Fix.

Article

• Misstatement and Exaggeration: “…impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists.”

o Facts: FISA is an extremely complex statute that is difficult enough to understand and apply even when it is not being deliberately distorted. Unfortunately, instead of reading the law, the New York Times chose to make up new assertions wholly unsupported by the facts. This did a disservice to our intelligence professionals who are attempting to keep America – especially prominent targets such as New York – safe.

o The new law plainly and expressly provides that surveillance must be “directed at” (targeted to) a person reasonably believed to be located outside the United States. Under well-established FISA practice and precedent, this only permits surveillance of foreign targets on foreign soil, not Americans on American soil. The Intelligence Community must develop procedures to ensure this is the case, and those procedures must be reviewed by the FISA Court.

o Any surveillance targeting Americans in the United States would still require an individual warrant from the FISA court, and any incidental collection of the communications of U.S. persons would still be subject to extensive minimization procedures. The bill expressly requires such minimization procedures to be imposed on any surveillance conducted under the new law, and those procedures must also be reviewed by the FISA court,

o Congresswoman Wilson expressly clarified in the Congressional Record that so-called “reverse-targeting” of the communications of Americans is intended to be illegal under this bill. Director McConnell also repeatedly has stated his intent in congressional briefings to seek an individualized order of the FISA Court to target any communication of an American.

o Judges of the FISA Court itself have also clearly expressed frustration with the fact that so much of their docket is consumed by applications that focus on foreign targets and involve minimal privacy interest of Americans.

• Misstatement and Exaggeration: “…new law for the first time provided a legal framework for much of the surveillance without warrants that was being conducted in secret by the National Security Agency and outside the Foreign Intelligence Surveillance Act … that is supposed to regulate the way the government can listen to the private communications of American citizens.”

o Facts: The Attorney General has publicly disclosed that the activities previously conducted under the Terrorist Surveillance Program described by the President were moved completely under FISA. The new law applies only to surveillance targeted at foreign persons, and a FISA order would continue to be necessary for surveillance targeted at Americans. The current FISA structure can handle these applications with speed and agility.

• Misstatement and Exaggeration: “[A] still-classified ruling earlier this year … which said the government needed to seek court-approved warrants to monitor those international calls going through American switches.”

o Facts: It’s not necessary to address or discuss any alleged court opinion to demonstrate that this assertion is false. The FISA modernization legislation passed by the House in the 109th Congress – well before the alleged opinion – attempted to address and close the FISA loophole for foreign terrorists.

• Misstatement and Exaggeration: “

he court’s only role will be to review and approve the procedures used by the government in the surveillance after it has been conducted.”

o Facts: This is a false and selective characterization of the plain provisions of the law. Third parties who are asked to assist the intelligence community under the law may challenge the legality of any directive by filing a petition with the FISA Court.

Editorial

• Misstatement and Exaggeration: “

oo scared of Republican campaign ads to use it to protect the Constitution.”

o Facts: Even without addressing the obvious fact that radical jihadists in foreign countries are not entitled to privacy rights under the Constitution relating to foreign intelligence collection, courts that have addressed the issue to date have made clear they believe that the type of surveillance contemplated by the bill is fully consistent with the Constitution, including the Fourth Amendment.

• Misstatement and Exaggeration: “They gave the Director of National Intelligence and the attorney general authority to intercept – without warrant, court supervision or accountability – any telephone call or e-mail message that moves in, out of or through the United States as long as there is a ‘reasonable belief’ that one party is not in the United States.”

o Facts: This assertion is false under the express terms of the statute. The law clearly requires that the surveillance be “directed at” (meaning targeted to) persons outside the United States, and that procedures be in place and reviewed by the FISA Court to ensure that surveillance concerns persons outside the United States. In addition, the law requires minimization procedures reviewed by the FISA Court to be in place to deal with incidental collection of communications of Americans.

• Misstatement and Exaggeration: “It would allow the government to intercept, without a warrant, every communication into or out of any country, including the United States.”

o Facts: If this were the case, the FISA Court would be virtually shut down. We still expect the Court to be conducting a significant and appropriate volume of work to protect the privacy interests of Americans, as it has and as it should.

An excellent, point by point rebuttal of the sedition regularly put forth by the New York Times.

And while I'm at it, let me direct your attention to this fine piece in the National Review. It cogently argues why FISA needs to be abolished or ignored, so that the President can exercise his authority under the Constitution.

For nearly two years since the New York Times blew the NSA’s warrantless-surveillance program, the Left has transfigured itself into a whirling dervish of indignation over President Bush’s imperious trampling of “the rule of law.” Why? Because he failed to comply with the letter of FISA, which purports in certain instances to require the chief executive — the only elected official in the United States responsible for protecting our nation from foreign threats — to seek permission from a federal judge before monitoring international enemy communications into or out of the United States.

But the president, at least, had an excuse. Actually, not a mere excuse but a trump card. We call it the American Constitution. It empowers the chief executive to conduct warrantless surveillance of foreign threats. Even the FISA Court of Review, the highest, most specialized judicial tribunal ever to consider FISA, has acknowledged this. So did the Clinton administration when FISA was amended in 1994. In the United States, the “rule of law” first and foremost is the Constitution.

The president’s constitutional authority is inviolable — it cannot be reduced by mere legislation. When Congress passes a statute, like FISA, that purports to reduce the president’s constitutional authority, it is Congress, not the president, that is trampling the rule of law. A president who ignores such a statute is not a law-breaker; he is a defender of the highest law. He is executing the responsibility vested in his office by the Framers who, as Alexander Hamilton observed in The Federalist No. 73, worried deeply about “the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments.”

Indeed, Andrew McCarthy gets it right when he argues that FISA needs to be buried in order to restore Constitutional equilibrium and a proper balancing of power -- because the judicial branches has no proper role, and the legislative branch none beyond appropriations, in this exclusively executive function.

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