LA Times' McGough guessed "President Gore" might have allowed warrantless wiretapping, but didn't note Gore's public criticisms

In an August 23 column, Los Angeles Times senior editorial writer Michael McGough asked, "If [former Vice President Al] Gore, not President Bush, had been in office on 9/11 when the World Trade Center towers fell, would civil liberties have survived the war on terrorism unscathed?" McGough went on to assert that "it is far from a slam dunk ... that a Gore administration wouldn't have done at least some of the things for which Bush has been pilloried." In conducting this "thought experiment," McGough concluded that Gore "might well have followed suit after 9/11 with his own versions of the Patriot Act and the Terrorist Surveillance Program." But McGough did not mention Gore's strong criticism of the Bush administration's warrantless domestic surveillance program. In fact, shortly after the program was publicly disclosed, Gore characterized it as "seem[ing] so clearly to violate the Bill of Rights." Gore has also called for the repeal of the Patriot Act.

In a January 16, 2006, speech to the American Constitution Society, titled "Restoring the Rule of Law," Gore criticized the Bush administration's approval of the National Security Agency's (NSA) warrantless wiretapping program. He asserted that "this pervasive wiretapping virtually compels the conclusion that the President of the United States has been breaking the law repeatedly and persistently," adding that the "Foreign Intelligence Surveillance Act self-evidently does not authorize what the NSA has been doing and no one inside or outside the administration claims that it does." Gore also drew a distinction between himself and Bush on counterterrorism policy:

The President and I agree on one thing. The threat from terrorism is all too real. There is simply no question that we continue to face new challenges in the wake of the attack on September 11th and that we must be ever-vigilant in protecting our citizens from harm.

Where we disagree is that we have to break the law or sacrifice our system of government to protect Americans from terrorism. In fact, doing so makes us weaker and more vulnerable.

Gore later criticized Bush's national security policy more broadly, citing Bush's declaration of "a heretofore unrecognized inherent power to seize and imprison any American citizen that he alone determines to be a threat to our nation, and that notwithstanding his American citizenship that person in prison has no right to talk with a lawyer" and what Gore characterized as the administration's claim of "a previously unrecognized authority to mistreat prisoners in its custody in ways that plainly constitute torture."

Further, in a November 9, 2003, speech titled "Freedom and Security," Gore called for the repeal of the Patriot Act:

Finally, I have studied the Patriot Act and have found that along with its many excesses, it contains a few needed changes in the law. And it is certainly true that many of the worst abuses of due process and civil liberties that are now occurring are taking place under the color of laws and executive orders other than the Patriot Act.

Nevertheless, I believe the Patriot Act has turned out to be, on balance, a terrible mistake, and that it became a kind of Tonkin Gulf Resolution conferring Congress's blessing for this President's assault on civil liberties. Therefore, I believe strongly that the few good features of this law should be passed again in a new, smaller law --- but that the Patriot Act must be repealed.

From McGough's August 23 Los Angeles Times column:

Only partly in the spirit of "Saturday Night Live," which once asked how World War II would have been affected if Eleanor Roosevelt could fly, I'd like to ask a "what if" question: How would the current discourse about civil liberties in an age of terrorism be different if Al Gore, rather than George W. Bush, had been elected president in 2000?

One possible difference is that we probably wouldn't be debating how (if at all) the war on terrorism related to the war in Iraq. But I'm more intrigued by that sector of the multiverse in which Gore won, 9/11 happened and U.S. military retaliation was limited to Afghanistan ..... yet other preventative measures were still taken on the home front.

It's a useful thought experiment because so much of the criticism of Bush's "assault on civil liberties" -- shorthand for the Patriot Act, National Security Agency eavesdropping on citizens suspected of ties to terrorists, Guantanamo -- operates on a kind of unified field theory of Bush perfidy. Having stolen the election in Florida, Bush lied us into Iraq, then set about trashing Americans' privacy on the bumper-sticker pretext of the war on terrorism.

It's no accident that Democrats who supported the recent "temporary fix" in the Foreign Intelligence Surveillance Act did so in spite of, not because of, Bush's championing of the bill. In defending her vote in favor, Sen. Dianne Feinstein (D-Calif.) emphasized how much she trusted not the president but Director of National Intelligence J. Michael McConnell.

So riddle me this, Bush-bashers: If President Gore, not President Bush, had been in office on 9/11 when the World Trade Center towers fell, would civil liberties have survived the war on terrorism unscathed?

Those who would answer "yes" can argue that Gore would not have received counsel from executive-power maximalists such as Dick Cheney and Justice Department official John Yoo. Instead, Gore would be counseled by hawkish Vice President Joe Lieberman, with some kibitzing from his Democratic predecessor, Bill Clinton.

But what makes this "what if" exercise so fascinating is that it is far from a slam dunk (as former CIA Director George Tenet, a Clinton appointee, might say) that a Gore administration wouldn't have done at least some of the things for which Bush has been pilloried.

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The point isn't whether [former CIA director James] Woolsey was right or wrong in his defense of unilateral eavesdropping by the once-mysterious NSA (which stood, Washington wags used to say, for "No Such Agency"). The point is that you don't have to be a "loyal Bushie" or even a Republican to support some renegotiation of the relationship between liberty and security. Clinton did after the Oklahoma City bombing, and President Al Gore might well have followed suit after 9/11 with his own versions of the Patriot Act and the Terrorist Surveillance Program.

We'll never know for sure how President Gore would have reacted in those circumstances, any more than we can assess the contributions of an airborne Eleanor to the war effort. But it's at least possible that, lacking Bush's baggage, President Gore might have been even better able to convince Congress that security must trump privacy.