January 23, 2006 | National Review Online

Spirited Defense

President Bush takes the NSA "scandal" head-on.

Maintaining that his administration was engaged in a “terrorist surveillance program” rather than, as his critics scoff, “domestic spying,” President Bush offered a spirited defense of the electronic eavesdropping he authorized the National Security Agency to undertake after the 9/11 attacks. His remarks came in the course of a wide-ranging speech on Monday at Kansas State University.

The president continued to stress that the program involved not systematic monitoring of ordinary Americans — the image doggedly promoted by much of the mainstream press and leading Democrats. Instead, it is a constantly reviewed initiative that targets persons reasonably believed to be members of our wartime enemy, al Qaeda, and its affiliated organizations in the broader firmament of militant Islamic organizations.

The communications on which the NSA is focusing, the president asserted, are international in nature. They have stoked controversy because one end or the other of some of those conversations (whether phone or e-mail) is in the United States. The interception of such conversations potentially implicates the Foreign Intelligence Surveillance Act (FISA) if Americans are intentionally targeted for surveillance (as opposed to being overheard coincidentally in the course of monitoring aliens overseas) or if the conversations are intercepted inside the United States.

Where FISA applies, it calls for the executive branch to get court permission before it may listen — permission which can be withheld if a judge is not satisfied that the government has demonstrated “probable cause” that the target is an “agent of a foreign power” (a term of art that covers international terrorist organizations). The NSA, however, is conducting its surveillance on the authority of the president, not the federal judges of the Foreign Intelligence Surveillance Court established by FISA.

The president reiterated two basic arguments in support of the NSA program which have been posited by the Justice Department and administration officials. The first relies on the inherent constitutional authority of the president under Article II of the Constitution. The president is commander-in-chief of the armed forces and the constitutional officer singularly obligated to conduct foreign affairs and protect the American people from external threats. Consequently, federal courts have long recognized the president's inherent authority to conduct monitoring to protect national security — at least when a foreign threat is involved.

Critics argue that the passage of FISA has altered the constitutional field. That contention, however, has two insuperable obstacles. First, the Constitution cannot be altered by a statute — it is the supreme law of the land. This is why (as I argued on Monday), acts of Congress have long been subject to being held invalid if they violate the Constitution or attempt to modify its structure. Presidents used national-security surveillance authority for many years before there ever was a FISA. If presidents had that power in the first place because of Article II, Congress can do nothing to take it away.

Second, in 2002 — even after nearly a quarter century of FISA's operation — the Foreign Intelligence Court of Review (the highest and most specialized court ever to review a FISA case) indicated that presidents maintain inherent constitutional authority despite the terms of FISA. Thus, administration critics are simply wrong when they argue that compliance with FISA is the sine qua non of lawful eavesdropping in the national-security arena.

The other point President Bush emphasized in his Kansas speech concerns the Authorization for the Use of Military Force (AUMF), passed by Congress right after 9/11 and reaffirmed a year later. That enactment is, for all intents and purposes, a declaration of war against al Qaeda, and is sweepingly general in its terms. The president contends that this generality was intentional. As he put it, “Congress gave me authority … but it didn't prescribe tactics.”

In a full-blown war, and against an enemy that is savage, stealthy, and stateless, this is prudent. It affords the executive branch maximum flexibility to counter and outmaneuver al Qaeda without the suggestion that it must return to Congress each time war-fighting innovations are called for by battlefield conditions. It also avoids the illogic of educating the enemy about our methods and our sources of information — an education that would be inexorable in any system that required seeking legislative approval for each individual incident of war-fighting.

Opponents contend that electronic surveillance does not come within the broad terms of the AUMF, which says nothing about eavesdropping. Signals intelligence, however, is a rudimentary component of military operations. Congress cannot tell the president he can deploy force but not monitor the enemy any more than it could tell a pitcher he can throw the ball as long as he doesn't wind up.

More to the point, as President Bush argued, his interpretation of the AUMF finds support in the Supreme Court's 2004 decision in Hamdi v. Rumsfeld. As is the case with electronic surveillance, the AUMF does not explicitly authorize the detention of American citizens as enemy combatants. Yet, in Hamdi, the Court read the AUMF to permit such detentions because they are a fundamental incident of waging war. Penetrating enemy communications — even if they involve Americans — are no less fundamental.

The president presented his defense with great confidence — and with good reason. Not only does he have strong arguments in his favor. It was also worth noting that, though he spent nearly an hour after the speech taking questions from the crowd of 9,000 students and other spectators, there was not a single question about the NSA program.

This “scandal” obviously piques the interest of the media. But what if they throw a scandal and nobody shows up?

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


Read in National Review Online