President Bush gives his weekly radio address at the White House, Dec. 17, 2005. He confirmed reports that his administration had authorized domestic surveillance in the fight against terrorism.
The Bush administration has released a 42-page legal argument assembled by the Department of Justice saying it's just fine for the president to spy on Americans without warrants if the president thinks those Americans are talking to terrorists. It's pretty obvious some folks at DOJ had to pull some all-nighters to finish this assignment.
Why the rush? It might have been because the Congressional Research Service unburdened itself of a 44-page study on the same subject Jan. 5. The CRS, a non-partisan creature of the Congress, basically concluded that the president has no such right.
The relative merits of these two legal views will be aired by the Senate Judiciary Committee, which has a hearing on the matter for Feb. 6 (to be carried live on NPR and NPR.org).
But whatever the Senate may decide, and whatever federal judges may eventually rule, the White House is really relying on the case it's making for its expanded powers in the court of public opinion.
If you ask Americans whether the president should get a warrant before conducting searches or surveillance, most will say yes he should. But if you ask whether it's okay to tap the phones of people living here and talking to terror suspects overseas, Americans will say yes to that, too.
In one poll by ABC News and The Washington Post, 44 percent of Americans said they were worried about the administration's anti-terror efforts going too far in compromising constitutional rights. But 48 percent said they were more worried that concerns over such rights would keep anti-terror efforts from going far enough.
While early signals of the public attitude on this issue have been mixed, the White House has now received a major boost from a most unlikely source: Osama bin Laden.
Without meaning to help the president, Osama has weighed in with another of his basement tapes, this one offering a truce in Iraq and Afghanistan but also threatening fresh attacks on the American public sometime in the future. Given his responsibility for the events of Sept. 11, 2001, the leader of Al Qaeda has to be taken seriously — no matter how mannered and predictable his warnings.
Of course, taking Osama seriously does not mean his missives will achieve their desired effect. It must be said that the man has shown an unfailing instinct for self-sabotage when he attempts to influence American attitudes. He's about on a par with the Japanese war planners who thought attacking Pearl Harbor would persuade the U.S. not to fight in World War II.
Witness the awkwardness with which the master terrorist tried to derail the American president's re-election in 2004. So counterproductive was his pre-election salvo that some rabid anti-Bushies suspected White House involvement in its release.
In fact, all that Osama's past forays in psy-war have achieved is the hardening of the animus against him, and the uniting of people who otherwise disagree about the war on terror. Even the harshest critics of President Bush — at home and abroad — have to join ranks at the thought of another Sept. 11.
What is more, as these tapes force us to take cognizance of Osama, we focus on how we can thwart him. That means rooting out his operatives and their accomplices in the U.S. Such a train of thought leads to surveillance, including extraordinary means of surveillance.
So when Osama projects a new Sept. 11, he creates at once the most potent argument imaginable for the president's desired expansion of executive powers. All kinds of executive powers.
In time, as we all learn more about how the current spying program works, it may be that warrants can in fact be obtained rather easily and quickly — even retroactively, after the spying has been done. Time need not be lost, nor effectiveness.
In fact, there may be nothing to lose by complying with the law except possibly convenience and total control of the process. Now that we all know the spying program exists, it makes no sense to fear leaks about its existence.
These are the sorts of considerations that might prevail in this matter — among judges and with the public — if the matter can be considered rationally. But if Osama intrudes and persists in pushing us into the orange and red levels of alert, that will be impossible.
It is much easier to see how that serves the Bush administration's purposes than to see how it serves al Qaeda's.