Abe’s checklist: 1. Free slaves. 2. Tap lines
By: William Hamilton, J.D., Ph.D.

Recently, the U.S. Senate and the White House agreed on legislation to make clear when the National Security Agency (NSA) needs a court order to conduct electronic surveillance of communications thought to be between terrorists operating abroad and their likely accomplices inside the United States and when NSA does not. But Speaker Nancy Pelosi (D) refuses, despite the bill’s huge bi-partisan support, to bring the matter to a vote.

Until this issue is resolved, NSA cannot legally intercept telecommunications between al-Qaeda and other terrorist groups and their adherents within the United States without going through the process required to obtain a court order for each attempted intercept.

Knowing court orders take time, the terrorists, using cell phones, dial-up one of their accomplices inside the United States, speak a few sentences, throw the initial cell phone in the trash, dial in again using a second cell phone, speak a few more sentences, throw the second cell phone in the trash, dial in again with a third cell phone and complete their conversation.

Without standing legislative authority to combat the terrorists’ telephone tactics, the billions we taxpayers spend to support NSA are pointless. And that, of course, is the stated objective of the ACLU. But, bear in mind, House Speaker, Nancy Pelosi (D), is merely representing the will of her San Francisco congressional district. If her constituents did not want her to behave the way she does, they would have tossed her out long ago.

Ironically, President Abraham Lincoln (R) is one of the heroes of the ACLU and Speaker Pelosi because it was Lincoln who, during the Civil War, freed the slaves. So it might shock the ACLU and Speaker Pelosi to learn that President Lincoln practiced telecommunications interception on a grand scale -- without court approval.

By now, even the village’s most mentally-challenged person knows that Great Powers spy on friend and foe alike. In fact, knowing the innermost thinking of other nations can be a boon to peace. For example, during the Cold War, both the Soviets and the U.S. permitted a certain amount of espionage to be conducted within their borders.

Why? Because both Great Powers found it useful to allow diplomats and military attaches living within their borders the freedom to roam around a bit and gather intelligence reflecting the peaceful intentions of the people on the streets. Both the KGB and the FBI even allowed a few “illegal” agents to operate, albeit under discreet surveillance.

Not long after the onset of the Civil War, President Lincoln learned the telegraph could, in almost real-time, inform him of troop movements and battlefield events. The telegraph allowed Lincoln to perform his role as commander-in-chief via the telegraph as no commander-in-chief, monarch, czar, or sultan in world history had ever done before. Hitherto Lincoln’s use of the telegraph, generals and admirals the world over were left to their own devices – too often with disastrous results.

President Lincoln not only used the telegraph to direct his generals, he tapped into the telegrams between his own generals. Moreover, he dispatched signal teams to find telegraph lines being used by the rebel forces and tap them for the Union’s benefit. To create confusion, Lincoln even sent out “false flag” telegrams to the rebel forces. In becoming the NSA/CIA of his day, President Lincoln relied on the commander-in-chief authority granted by the U.S. Constitution.

Some, but not all, constitutional scholars argue the commander-in-chief powers set out in Article II, Section 2, Clause 1 are broad enough to allow any President to do whatever he deems necessary to carry out that role. They argue that President Bush (R) should not bother with the likes of Speaker Pelosi (D) and the ACLU and “just do it.”

For more about President Lincoln and wire-tapping read: Tom Wheeler’s Mr. Lincoln’s T-Mails: How Abraham Lincoln Used the Telegraph to Win the Civil War. New York: HarperCollins, 2006.

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