One of the few policy areas where Bush still receives more positive than negative marks is National Security. A few months ago, Hayden made a ferocious defense of the warrant less wiretapping practice of the NSA. As I wrote in a previous article, there are secret FISA (Foreign Intelligence Surveillance Act) courts created to provide secret warrants to eavesdrop and search suspected terrorists and their enablers. I suspected, and Senator John Kerry confirmed in an address, that it is easy to obtain warrants with a rapid turnaround from these secret courts when the need arises. Thus, the end run performed by the NSA (Architected by Hayden with Bush administration approval) around the fourth and fifth amendments is unnecessary and a dangerous precedent. Using the secret courts to obtain a warrant for wiretapping provides at least a semblance of oversight and a paper trail that would tend to keep people using the FISA courts more honest. However, this is a nuanced argument that does not lend itself to sound bites. It will likely be much easier for the Bush administration to demagogue about Democrats being soft on National Security. It plays very well among Rush Limbaughs ditto-heads and the Freepers over at Free Republic, which is a good indication that it will appeal to the Republican base. It also appeals to the fears of voters throughout the political spectrum. The immigration issue is another wedge issue that allows Republicans to play on the fears of swing voters. It will be harping on issues like these that Rove and the GOP will hitch their collective hopes for election 2006.
Democrats like Senators John Kerry and Harry Reid, as well as Howard Dean and Representative Pelosi need to start hammering in the press on the ease and speed of getting warrants through the FISA courts and the legal and Constitutional ugliness of the NSA warrant less wiretapping practice. Hayden will put up another ferocious fight to defend himself and the practice and should not be underestimated. He will likely point to specific instances of using the wiretaps where they prevented incidents. This is going to turn into an important issue so Democrats on the Senate Judiciary committee need to be ready for this. The implications for this confirmation hearing go way beyond the CIA to the protection of our Constitutional rights and to election 2006.