Terry Jeffrey

Lindsey Graham of South Carolina is once again in the press, playing his oft-reprised role as the Republican-senator-who-disagrees-with-his-party.

This time, the script has called for abandoning both common sense and certain constitutional principles.

As soon as President Bush asked Congress to enact legislation codifying military tribunals to try suspected al-Qaida terrorists and to permit warrantless eavesdropping on suspected al-Qaida communications in and out of the United States, Graham started objecting.

"No one, Democrat or Republican, wants to impede the ability of our national security apparatus to find what the enemy is up to," Graham told the Birmingham (Ala.) News, "but no American should be monitored by their government believing they're part of an enemy plot without some judge checking the government's homework."

To defend his professed principle, Graham is co-sponsoring a bill with Republican Sen. Mike DeWine of Ohio that would allow the president to monitor Americans without a warrant -- for 45 days. After that, the president would need a judge's permission.

Why an arbitrary 45 days?

If a president is bent on wiretapping Americans for personal or political reasons, Graham's 45-day window gives him plenty of opportunity.

On the other hand, as the constitutional officer charged with defending the nation against attack, either the president has the constitutional authority to eavesdrop on suspected enemies without a warrant, or he doesn't.

Despite a recent district court ruling to the contrary, every appeals court that has ever ruled on the issue has determined the president does have this power. In 1980, for example, the U.S. Court of Appeals for the Fourth Circuit determined in United States v. Truong that "the president may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs." In 2002, the U.S. Foreign Intelligence Surveillance Court of Review reaffirmed this ruling. "We take it for granted that the president does have that authority," it said.

Gen. Michael Hayden, the CIA director, has indicated that the al-Qaida surveillance program has yielded intelligence about terrorists that could not have been gotten with a warrant. If that is so, Graham's 45-day warrant deadline could cause us to lose intelligence about al-Qaida.

Equally cockeyed is Graham's objection to the president's proposal for military tribunals.

The president's tribunals would grant a suspected terrorist's lawyer (who would have a security clearance) access to any classified information used as evidence. The lawyer could not pass this information on to the suspected terrorist, however.


Terry Jeffrey

Terence P. Jeffrey is the editor-in-chief of CNSNews

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