February 07, 2006,
Attorney General Alberto Gonzales went before the Senate Judiciary Committee Monday to confront some of the staunchest critics of the Bush administration's terrorist-surveillance program. That program involves warrantless National Security Agency monitoring of al Qaeda's international communications, some of which go into or out of the United States.
For nearly two months, leading Democrats and some Republicans have lambasted the program as heedless of civil liberties and illustrative of the president's placing himself "above the law." The law they have in mind is the Foreign Intelligence Surveillance Act of 1978 (FISA), which governs most domestic monitoring of terrorists and spies, and outside whose strictures the NSA program operates.
Gonzales capitalized on the opportunity to dispel misconceptions about the program. It is, he explained, not a "domestic spying" operation, but rather an effort to penetrate enemy communications. He argued that the program, for all its technological sophistication, is consistent with the actions of previous wartime administrations. He also refuted allegations that the NSA is involved in massive and indiscriminate interception of private conversations, the contents of which are then mined to decide who merits close listening. Rather, a conversation is not intercepted unless the NSA has a reasonable basis for believing that a Qaeda operative is on one end of the line a basis that, according to Gonzales, is comparable to FISA's required showing of probable cause that the target of surveillance is an agent of a foreign power.
not the president,
that strays above the law
when it seeks to curtail
the executive's authority.”
Gonzales also addressed the hyperbolic suggestion of Committee Chairman Arlen Specter and others that the NSA program is a "repeal by implication" of FISA. First, far from having "repealed" FISA, the administration continues to use it broadly and regards it as a valuable counterterrorism (and counter-espionage) tool. The NSA program does not supersede FISA, but operates on the basis of authority unrelated to it: the executive power inherent in Article II of the Constitution. The Constitution has always given presidents primacy in both foreign relations and the collection of foreign intelligence. It vests the president with the power necessary to do precisely what he has done and, indeed, what he had to do in order to fulfill his obligation to protect the United States. The FISA court of appeals has held that the president has inherent constitutional authority to conduct warrantless wiretapping, and, when the ACLU challenged that decision, the Supreme Court declined to review the case. It is Congress, not the president, that strays above the law when it seeks to curtail the executive's authority.
FISA itself contemplates this authority, and Congress's sweeping authorization of the use of military force after 9/11 further supports it. The Supreme Court indicated in its Hamdi ruling that the authorization embraces all the fundamental incidents of waging war, which clearly include signals intelligence. On this point and contrary to what some senators said at the hearing the issue is not whether individual members of Congress thought they were authorizing wiretapping. Because legislators cannot predetermine the course of battle, use-of-force authorizations are general by the design, and involve granting the commander in chief maximum flexibility to use the known tools of war. The impracticable alternative would be for the president to return to Congress to request specific support and, in so doing, to educate the enemy every time a new tactic seemed promising.
Most senators Monday tried to walk a fine line, criticizing the program while eschewing the hyperbole of the past weeks and insisting that national security was their overriding concern. They claimed that they wanted merely to bring the program into the FISA framework (i.e., have judges oversee the commander in chief's wartime judgments about monitoring the enemy), and even expressed willingness to amend FISA to accommodate the program.
But even if these claims are sincere, they are ill conceived. Forcing the NSA program into the FISA construct neglects the fact that they have very different objectives. FISA is aimed at collecting intelligence over the long term against foreign agents and spies who operate domestically. The terrorist-surveillance program is an early-warning system designed to safeguard the nation against attack, and depends on the kind of quick decision-making that only the executive can provide.
Indeed, Monday's debate veering as it did into territory having nothing to do with the NSA program, or else into questions about operational details that Gonzales could not disclose without compromising the program's effectiveness provided a perfect illustration of what it looks like when national security is subjected to the convoluted maneuverings of legislative bodies. As though to draw attention to the glacial speed at which it works, the Judiciary Committee did not adjourn without expressing its wish to bring Gonzales back next week for more of the same. Thankfully, the surveillance that could block a repeat of 9/11 does not depend on its actions.