December 21, 2005,
We are once again living in September 10 America. The signs are all around us: Congress's acting to neuter interrogations of terrorist detainees; the Senate's filibustering the reauthorization of the most important piece of counterterrorism legislation since 9/11, the Patriot Act (Sen. John Sununu, who supports the filibuster, responds to our Friday editorial here); and now the controversy over National Security Agency intercepts of conversations between persons in the United States and suspected al Qaeda operatives overseas.
The New York Times ignited the firestorm last Friday, of course, with a front-page report on how President Bush has authorized the eavesdropping on conversations without obtaining warrants under the Foreign Intelligence Surveillance Act. Democrats are rushing to accuse Bush of breaking the law and are even flirting with the I-word impeachment their favorite fantasy of the moment. While there is much yet to be learned about the NSA program, it seems very likely that no laws were broken and that President Bush was acting responsibly in a context where we are fighting a fast-moving, loosely organized enemy that uses the wonders of modern communications technology to aid its mass murder. The president still has preventing another September 11 foremost on his mind, even as much of the rest of political culture has lapsed back to September 10, when we hamstrung our own surveillance and law-enforcement capabilities in blissful unawareness of the enemy that was about to slaughter 3,000 Americans.
The debate so far over the NSA surveillance has obscured more than it has enlightened. It is important to remember that the Constitution fully vests the president with authority to use all the powers of government to respond to national-security threats. Indeed, the Supreme Court held during the Civil War that the commander-in-chief is not merely empowered but obligated to respond effectively. This obviously includes deployment of intelligence assets as well as military force.
In addition, immediately after September 11, Congress declared that "the president has authority under the Constitution to take action to deter and prevent acts of international terrorism" and authorized "all necessary and appropriate force" against al Qaeda. The Bush administration cites this authorization in justifying the NSA program. Critics respond that the authorization said nothing about intercepting communications. Well, it didn't say anything about detaining enemy combatants either. But in the Hamdi case the Supreme Court upheld the administration's power to do just that, since such detentions are organically connected to waging war against al Qaeda. The same applies to the NSA wiretaps. The position of Bush's critics is that he can launch a Hellfire missile at an al Qaeda operative in Pakistan or Yemen, but can't listen to that operative's telephone conversations. Absurd.
Compromising the enemy's communications is a goal as old as war itself. It is not this is an important distinction driven by domestic-policing concerns. Its purpose is to protect against extraneous threats to the very system on which all of our civil liberties depend. Consequently, the government's ability to monitor communications for national-security purposes has always been different from its ability to intercept conversations for law-enforcement reasons. That point is lost in the current debate.
The Constitution is not implicated at all when communications of aliens situated outside U.S. territory are intercepted by American authorities. Such monitoring is a key part of what the NSA does. Moreover, prior to the domestic-spying scandals of the 1970s which involved using national security as a pretext for surveilling political enemies, not, as here, legitimate monitoring of perceived threats to public safety the executive branch routinely conducted monitoring on its own constitutional authority.
That began to change in 1972 when, for the first time, the Supreme Court held that the Fourth Amendment's presumptive requirement of a judicial warrant applied to wiretaps in terrorism investigations involving purely domestic groups. The Court, however, took pains to the note that it was not purporting to define, much less restrict, the "scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country." (Emphasis added.)
Congress, however, reacted to the spy scandals by enacting the Foreign Intelligence Surveillance Act (FISA), signed into law by Jimmy Carter in 1978. FISA created a statutory scheme for monitoring communications inside the U.S. involving agents of foreign powers (including international terrorist organizations). Henceforth, the government (usually, the FBI) would be required to satisfy a secret court, created for the purpose of hearing the government's case, that there was probable cause that both the person and the communications device it wished to monitor were facilitating the activities of a foreign country or an international terrorist organization.
FISA has always been constitutionally dubious, at least at the margins. The Constitution reposes the power to repel foreign threats in the president, not the courts, which are ill suited to the task. A statute, moreover, cannot limit or override a constitutional power. To the extent FISA purports to tie the president's hands in dealing with true national-security threats, FISA must yield. To put a different spin on the much-discussed "ticking bomb" scenario, if there were reason to believe a communication between two al Qaeda operatives would reveal details of an imminent bombing attempt in New York City, it would be suicidal to conclude that the president was powerless to order monitoring simply because a judge refused to authorize it. The president's constitutional responsibility to protect the American people from foreign attacks would plainly trump FISA.
The interplay between FISA and international monitoring is tricky. FISA generally has no application overseas. If the NSA is eavesdropping on a foreign phone, and that phone happens to be used to call someone inside the United States, the statute is not violated. In this context, FISA purports to prohibit only "the acquisition . . . of the contents of any wire communication to or from a person in the United States, . . . if such acquisition occurs in the United States." (50 USC Sec. 1801(f)(2), emphasis added.) If the call is intercepted outside American territory, no warrant is called for.
citizen who chooses to call, or
accept calls from, an al Qaeda
operative overseas reasonably expect
that those conversations would not
be monitored by American
or other authorities?”
It is a bit more complicated if the monitoring is done outside the United States but with the specific intention of intercepting a U.S. person inside American territory. In such circumstances, a FISA warrant is required only if the U.S. person has a "reasonable expectation of privacy." Of course, it is well known that phone and Internet traffic is monitored in many countries (particularly where regimes are authoritarian, and even in many places where they are not). It is, moreover, equally well known that the United States and other nations are at war with al Qaeda, and that efforts to penetrate al Qaeda's communications are global and energetic. How could an American citizen who chooses to call, or accept calls from, an al Qaeda operative overseas reasonably expect that those conversations would not be monitored by American or other authorities?
To the questionable nature of the FISA warrant requirement, considerations of sheer volume must be added. Each application for a warrant is an extensive process (see Byron York's report here), requiring rungs of internal Justice Department review before presentation to the FISA court. Even back in 1978 before the advent of the new kind of war in which we now find ourselves Congress recognized that this process would be impracticable during wartime crises, with their need for increased surveillance. It provided a window albeit a narrow one for the president or the attorney general to order searches without warrants during the first fifteen days after a declaration of war (during which time Congress could take appropriate action to ease FISA restrictions, if appropriate). Such a wartime scenario is a case in which the government has an unassailable legal justification for seeking a FISA warrant; but, even so, Congress acknowledged that hewing to the FISA process could endanger the nation's capacity for self-defense, and provided an alternative.
This, then, is the backdrop for the post-9/11 exigencies and their fallout: circumstances in which the president's constitutional power and duty were broader than FISA's statutory authority; in which the application of FISA may have been legally unnecessary (a matter on which it is impossible at this point to judge, because the NSA monitoring is and should remain highly classified); and in which the imperative to react swiftly to torrents of threat information might have been fatally undermined by saddling each of hundreds of surveillance initiatives with the laborious FISA application process.
How should the government have dealt with this unprecedented threat environment an environment in which, unlike in past wars, our civilian centers are the enemy's desired targets, and in which failure to act can mean death on a massive scale? The president's response seems entirely justifiable: directing that intelligence be acquired with due speed; bypassing the court process as unduly burdensome and, perhaps, a hindrance on his constitutional obligations; but ensuring that the pertinent oversight committees of Congress and the bipartisan leadership of both houses were notified; and, to the extent intelligence yielded by the NSA efforts was relevant to ongoing FISA investigations, forthrightly disclosing the NSA operation to the secret court.
Could the administration have given itself more cover? Some have asked why it didn't get retroactive warrants from the FISA court for its wiretaps. But it might not have been able to meet the standard of probable cause with many of the targets, about which little might have been known except that their phone numbers showed up in the possession of someone overseas with al Qaeda connections. Why didn't the administration get Congress to adjust the FISA law to accommodate the program? Perhaps there was a political window to do so immediately after 9/11, but it closed quickly. Now Congress isn't even reauthorizing the use of roving wiretaps a tool routinely used to investigate ordinary crimes against suspected terrorists.
There apparently wasn't any easy way to spread responsibility here. President Bush appears to have faced a situation in which he had a choice between acting to protect America's national security or doing nothing. His choice strikes us as eminently sensible, even if it is inexplicable to those for whom it remains September 10.