NSA: The Necessity Defense

As the New York Times dances with treason and the possibility of serious jail time, I thought of a motorist I stopped a few years ago.

I’d been watching an intersection when I saw a car slow to a red light before driving through it.

When I pulled the driver over, he explained that his pregnant wife was in labor and that they were on the way to the hospital. After a few questions and directions, I escorted the driver and his wife to the emergency room. I congratulated the new parents and did not issue a ticket.

I’m no lawyer, but I’d say the Necessity Defense is ten percent legal theory and 90 percent common sense. The standard for this defense generally allows the commission of a crime if:

1. An individual believes its commission is necessary to avoid a harm or evil to himself or someone else;
2. The harm or evil sought to be avoided is greater than that sought to be prevented by the law;
3. The law that defines the offense does not provide exceptions or defenses dealing with the specific situation involved, and;
4. A legislative purpose to exclude the justification claimed does not otherwise plainly appear.

Had the motorist been speeding or recklessly endangered his family and others, I would have found another solution and might well have cited him. In this case, the driver appeared coherent and cautious despite the act. To me, his conduct was reasonable to protect the health of his wife and new baby. He had a reasonable necessity to commit the act.

While smart people debate the merits of President Bush’s NSA deployment to tap electronic communications, I doubt that he committed any crime. He wasn’t covering up a sexual harassment lawsuit or dispatching IRS investigators to audit his political enemies. But for argument’s sake, let’s assume that President Bush did not have the legal authority to conduct a warrantless wiretap. Let’s assume that he violated wiretapping laws.

• Can President Bush reasonably believe that its commission was necessary to avoid a harm or evil to Americans greater than that sought to be prevented by law?

I’ve found no reports where wiretaps have harmed innocent Americans. At the same time, prosecutors have described how these wiretaps have helped the United States thwart Al Qaeda attacks, kidnappings, and plans that would have resulted in hundreds or thousands of American deaths. Most Americans understand that the security of Aunt Polly’s email and phone conversations are not as vital to the United States as the failure of protections that might permit the deaths of thousands, or millions of Americans during an attack. Had warrantless eavesdropping prevented 9-11, I sure Aunt Polly wouldn’t have lost any sleep.

• Do the laws that define electronic crimes provide exceptions or defenses with the specific situations involved?

Unlike the days when laws prohibiting electronic eavesdropping were created, we are at war with an enemy that has no country, rules, or values. Because of the terms of this war, our enemies continuously use every means necessary to gain victory – even if it takes using the New York Times and the ACLU as agents against the United States of America.

While it may take months or years to create laws and procedures, our enemies may take an hour or less to develop and deploy tactics that can be used against us. If President Bush was required to wait for the courts and legislature to consider and authorize each warrant or modification in our policies and tactics, he will have violated his oath to protect and defend these United States. America’s domestic enemies want to force Bush into inaction and paralysis that will cause our president to violate his oath of office – dereliction that may well be an impeachable offense. President Bush is not listening to Bill and Monica – he’s listening to America’s enemies.

• Does a legislative purpose to exclude President Bush’s justification plainly appear?

No. The fact that this debate continues demonstrates that none exists.


In Defense of Treason

Although they cannot describe a single case of electronic eavesdropping that injured innocent Americans, the New York Times attempts to use the same defense for treason:

A democratic society cannot long survive if whistle-blowers are criminally punished for revealing what those in power don't want the public to know - especially if it's unethical, illegal or unconstitutional behavior by top officials.

Let’s examine the same questions:

• Was the release of classified information by government officials and the New York Times necessary to avoid a harm or evil to Americans greater than that sought to be prevented by law?

The New York Times wants American’s to think that harvesting electronic data during a time of war poses a greater danger to Americans than the violation of secrecy laws. To prove this, it would be helpful for the Times to demonstrate a few victims of data harvesting. At this time, none exist.

Had a whistleblower and the Times disclosed our plan to attack Normandy Beach (D-Day 1944), I doubt that FDR would have spared the traitor and news editors from being shot.

• Do the laws that define electronic crimes provide exceptions or defenses with the specific situations involved?

No. Again, Congress passed these laws years before many of today's technologies, strategies, and military scenarios existed.

• Does a legislative purpose to exclude the New York Times’ justification to release classified information plainly appear?

No. The New York Times delivers political and ideological reasons to marginalize President Bush’s effectiveness. Because those reasons have not worked, they now flirt with treason to undermine the war effort and our Commander in Chief.

Congressional legislative intent may have already answered the question of whether electronic eavesdropping is more serious than the release of classified material. The unauthorized release of “communication intelligence” is punishable by up to ten years imprisonment, while electronic eavesdropping, a misdemeanor, is punishable by a $500 civil fine.

The United States has a compelling reason to prosecute media outlets and individuals who release classified information. And while the MSM, ACLU, and other enemies may lament the chilling effect of such prosecutions, putting this treachery on ice is long overdue.