The Probable Cause of the NSA Controversy

Imagine for a moment that we are at war. (For many of us, that will not require a very active imagination.)

Our military-theater commanders in western Afghanistan and central Iraq sketch out operations against the enemy. They account for the various contingencies that might arise when confronting stealthy terrorists who shun the laws of civilized warfare. They pore over the latest intelligence estimates one last time. They position their land and air forces accordingly, and ensure that they are properly armed and ready.

And then they go … straight to court.

Where's the Probably Cause?
Why? Well, to make sure their activities meet the approval of a federal judge, of course. After all, they are about to embark on gross invasions of privacy. Lives are about to be taken, liberty deprived, property seized. Surely, in 21st-century America, such potentially overbearing executive branch behavior cannot be permitted absent approval of a court, can it? What about due process? Where is the probable cause?

Sound ridiculous? Yes, it does. But it is no more absurd than the notion that drives the current controversy over wartime electronic surveillance by the National Security Agency.

We are either at war or we are not. If we are, the president of the United States, whom the Constitution makes the commander-in-chief of our military forces, is empowered to conduct the war — meaning he has unreviewable authority to employ all of the essential incidents of war fighting.

Not some of them. All of them. Including eavesdropping on potential enemy communications. That eavesdropping — whether you wish to refer to it by the loaded “spying” or go more high-tech with “electronic surveillance” or “signals intelligence” — is as much an incident of warfare as choosing which targets to bomb, which hills to capture, and which enemies to detain.

It was critical in the Civil War, when, by definition, it was done domestically — and without the slightest suggestion that federal courts should be involved. It was critical in World War II, when concerns about enemy infiltration were very real. And it is perhaps more critical today than during any war in our nation's history.

Al Qaeda is an international terrorist network. We cannot defeat it by conquering territory. It has none. We cannot round up its citizens. Its allegiance is to an ideology that makes nationality irrelevant. To defeat it and defend ourselves, we can only acquire intelligence — intercept its communications and thwart its plans. Nothing else will do.

Al Qaeda seeks above all else to strike the United States — yet again — domestically. Nothing — nothing — could be worse for our nation and for the civil liberties of all Americans than the terrorists' success in that regard. For those obvious reasons, no communications are more important to capture than those which cross our borders. Al Qaeda cannot accomplish its ne plus ultra, massive attacks against our domestic population centers, unless it communicates with people here. If someone from al Qaeda is using a phone to order a pizza, we want to know that — probable cause or not.

No Blank Check
Does this, as the naysayers' talking points insist, put the president above the law? Does it give him a blank check? The very asking of such questions betrays either a stubborn ignorance about our system or a shrewd agenda to accrete the power of other branches at the expense of the executive — and in defiance of the Framers' ingenious construct.

The president is not above the law, but neither is any other branch. The highest law in the United States is the Constitution. Congress is not above that law — and it if enacts a statute, a “law,” that undermines or alters the Constitution's structure, it is Congress that has placed itself above the law.

There is remotely nothing novel in this. When Congress enacts a law that attempts to regulate an activity committed by the Constitution to state control, that law is struck down — we do not say the states have put themselves above the law by challenging federal legislation. When Congress enacts a law that attempts to regulate when state action violates the Constitution, that law is struck down as an invalid attempt to exercise judicial power — we do not say the judges have placed themselves above the law. Similarly, when Congress enacts a law that attempts to regulate a power committed by the Constitution to the president, that law is unconstitutional.

Congress tried to do exactly that, for example, in 1876. It passed a law purporting to make its approval necessary before the president could remove certain executive-branch officials. A half-century later, the Supreme Court struck that law down in Myers v. United States (1926). President Taft was not putting himself “above the law” by firing someone within his constitutional chain-of-command in spite of the 1876 statute. To the contrary, Congress had placed itself above the law by ignoring the Constitution's separation of powers. By attempting through legislation to dilute the executive's constitutional power.

Congress did so again with the Foreign Intelligence Surveillance Act, the 1978 statute which sought to make judicial approval, on a legal standard of probable cause, a prerequisite to national-security eavesdropping (and, now, searches). FISA may not be unconstitutional in all its particulars (although it may be — and it certainly needs overhauling if it is to avoid laughingstock status, pitted against 21st-century enemies versed in 21st-century technology). But to the extent FISA limits the power of the commander-in-chief to conduct warfare, to the extent it would transfer to judges the decision whether an essential incident of warfare may be used, it is no more constitutional — or rational — than if it had purported to put the courts in charge of military target selection, or other battlefield judgments.

A blank check for the president? That is preposterous rhetoric. The commander-in-chief power includes the incidents of warfare. Nothing else. The president cannot seize the steel mills. He cannot suspend habeas corpus. He cannot close the banks, raise taxes, or conscript minors. He is no king. Indeed, if we are to talk about “the king” — as in having no clothes — our eyes should be cast on Capitol Hill.

From the hysteria that abounds, one would think that if FISA was not merely ignored but repealed, we would be living in a dictatorship, with All the President's Men snooping into every phone call, every library, and every bedroom. It is nonsense. Congress retains the power of the purse. Nothing prevents it, tomorrow, from passing a law that denies all funding for any domestic surveillance undertaken by the NSA or any other executive branch agency.

The president could do nothing but veto such a bill. But if, as leading Democrats and civil-liberties extremists maintain, the NSA program is truly one of the most outrageous, execrable, impeachable acts ever committed in recorded history, that veto would easily be overridden.

So why doesn't Congress just do it. Why doesn't it, literally, put its money where many of its mouths are? Why don't the people's representatives bring to heel this renegade, above-the-law president and his blank check? Because they'd lose, decisively and embarrassingly, that's why.

Because they'd have to take an accountable position on life-and-death. Because such a vote, in the middle of a war in which millions of American lives are at stake, would say, unambiguously, that they actually believe the government should not monitor enemy communications unless a federal judge — someone no one voted for and voters cannot remove — decides in his infinite wisdom that there is probable cause. It's so much easier to carp for a scandal-happy media about “the privacy rights of ordinary Americans,” as if that were really the issue.

But the sound and fury signify nothing to those ordinary Americans. Two wartime Novembers ago, with national security — that is, their own safety — the defining campaign issue, they went to the polls in record numbers. This may be news to some, but upon considering in whose hands to place the weighty responsibility of defeating al Qaeda, they didn't elect the judges of the Foreign Intelligence Surveillance Court.

— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.