Was the Bush administration’s Terrorist Surveillance Program a violation of the 1978 Foreign Intelligence Surveillance Act (FISA), which forbids domestic wiretapping without a warrant? And was the New York Times’s decision to reveal the existence of the highly classified program, against warnings that it would gravely damage national security, an act of journalistic heroism and a powerful blow on behalf of civil liberties?
Affirmative answers to both questions have been the standard liberal line ever since the Times broke the story of the NSA wiretapping program in December 2005. With a verdict on March 31 in the al Haramain Islamic Foundation case, the Times is claiming a stamp of approval for its actions from the courts. In a thunderous editorial, the paper declared that federal judge Vaughn Walker’s decision means that the NSA program was not only founded upon “spurious, often ludicrous, claims of national security” but that it was also flatly illegal: When the Bush administration, in investigating the terrorist ties of the al Haramain foundation, “failed to get a warrant to wiretap, it broke the law.”
Yet the facts of the al Haramain litigation are not as uncomplicated as the Times would have it. They are a reminder both of the terrorist danger we face and our vulnerabilities as an open society trying to counter it. The episode is a classic example of lawfare, with a terrorist-supporting outfit turning the rule of law and due process against us.
After September 11, the al Haramain Islamic Foundation, a “charity” based in Saudi Arabia with branches in Afghanistan, Somalia, Pakistan, Nigeria, and a number of other equally disagreeable locales, was banned worldwide under the strictures of a U.N. Security Council resolution aimed at cutting off support for “al Qaeda, Osama bin Laden and/or the Taliban wherever located.”