January 29, 2006 | National Review Online
How to ‘Connect the Dots’
Well, for one thing, you use surveillance.
EDITOR’S NOTE: This piece appears in the January 30, 2006, issue of National Review.
Washington’s scandal du jour involves a wartime surveillance program President Bush directed the National Security Agency to carry out after al-Qaeda killed nearly 3,000 Americans on September 11, 2001. The idea that there is anything truly scandalous about this program is absurd. But the outcry against it is valuable, highlighting as it does the mistaken assumption that criminal-justice solutions are applicable to national-security challenges.
The intelligence community has identified thousands of al-Qaeda operatives and sympathizers throughout the world. After Congress overwhelmingly authorized the use of military force immediately following the 9/11 attacks, the president, as part of the war effort, ordered the NSA to intercept the enemy's international communications, even if those communications went into and out of the United States and thus potentially involved American citizens. According to reports from the New York Times, which shamefully publicized leaks of the program's existence in mid-December 2005, as many as 7,000 suspected terrorists overseas are monitored at any one time, as are up to 500 suspects inside the U.S.
As is typical of such wartime operations, the NSA program was classified at the highest level of secret information. It was, nevertheless, completely different from the kind of rogue intelligence operations of which the Nixon era is emblematic (though by no means the only case). The Bush administration internally vetted the program, including at the Justice Department, to confirm its legal footing. It reviewed (and continues to review) the program every 45 days. It briefed the bipartisan leadership of Congress (including the intelligence committees) at least a dozen times. It informed the chief judge of the federal Foreign Intelligence Surveillance Court (FISC), the tribunal that oversees domestic national-security wiretapping. And it modified the program in mid-2004 in reaction to concerns raised by the chief judge, national-security officials, and government lawyers.
Far from being a pretextual use of war powers to spy on political opponents and policy dissenters, the NSA program has been dedicated to national security. More to the point, it has saved lives, helping break up at least one al-Qaeda conspiracy to attack New York City and Washington, D.C., in connection with which a plotter named Iyman Faris was sentenced to 20 years' imprisonment.
As potential scandal fodder, so unremarkable did the NSA program seem that the Times sat on the story for a year — and a year, it is worth noting, during which it transparently and assiduously sought to exploit any opportunity to discredit the administration and cast it as a mortal threat to civil liberties. The leak was not sprung until the eleventh hour of congressional negotiations over renewal of the Patriot Act — at which point it provided ammunition to those who would gut Patriot's crucial post-9/11 domestic-surveillance powers and simultaneously served as a marketing campaign for Times reporter James Risen, who just happened to be on the eve of publishing a book about, among other things, Bush's domestic “spying.”
In fact, so obviously appropriate was wartime surveillance of the enemy that Rep. Jane Harman, the ranking Democrat on the House Intelligence Committee, issued a statement right after the Times exposed the program, saying: “I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al-Qaeda. I believe the program is essential to US national security and that its disclosure has damaged critical intelligence capabilities.” (With partisan “scandal” blowing in the wind, Harman changed her tune two weeks later, suddenly deciding that the “essential” program was probably illegal after all.)
A MIGHTY FUSS
If President Bush's reelection is any indication, what most Americans will care about is that we are monitoring the enemy. Chances are they won't be overly interested in knowing whether that monitoring is done on the president's own constitutional authority or in accordance with a statutory scheme calling for judicial imprimatur. Nevertheless, the Left is already indulging in loose talk about impeachment. Even some Republican “moderates,” such as Arlen Specter, say the domestic-spying allegations are troubling enough that hearings are warranted. So it's worth asking: What is all the fuss about?
At bottom, it is about a power grab that began nearly three decades ago. Ever since it became technologically possible to intercept wire communications, presidents have done so. All of them, going back to FDR, claimed that the powers granted to the chief executive under Article II of the Constitution allowed them to conduct such wiretapping for national-security purposes. Particularly in wartime, this power might be thought indisputable. The president is the commander in chief of the armed forces, and penetrating enemy communications is as much an incident of war-fighting as bombing enemy targets is.
But surveillance power has been abused — and notoriously by President Nixon, whose eavesdropping on political opponents was the basis of a draft article of impeachment. Watergate-era domestic-spying controversies dovetailed with important developments in the law of electronic surveillance. In 1967, the Supreme Court, in Katz v. United States, held that Fourth Amendment protection against unreasonable searches extended to electronic surveillance — meaning that eavesdropping without a judicial warrant was now presumptively unconstitutional. Congress followed by enacting a comprehensive scheme, known as “Title III,” that required law-enforcement agents to obtain a court warrant for probable cause of a crime before conducting electronic surveillance. Yet both Katz and Title III recognized inherent presidential authority to conduct national-security monitoring without being bound by the new warrant requirement.
The Supreme Court undertook to circumscribe this inherent authority in its 1972 Keith decision. It held that a judicial warrant was required for national-security surveillance if the target was a purely domestic threat — the Vietnam-era Court giving higher priority to the free-speech interests of “those suspected of unorthodoxy in their political beliefs” than to the safety of those who might be endangered by domestic terrorists. Still, the Court took pains to exempt from its ruling the “activities of foreign powers or their agents” (emphasis added).
The true power grab occurred in 1978, when Congress enacted the Foreign Intelligence Surveillance Act. FISA attempted to do in the national-security realm what Title III had done in law enforcement: erect a thoroughgoing legal regime for domestic eavesdropping. And therein lies the heart of the current dispute. If the president has inherent authority to conduct national-security wiretapping, it is a function of his constitutional warrant. It is not a function of Congress's having failed until 1978 to flex its own muscles. A constitutional power cannot be altered or limited by statute. Period.
But limiting presidential authority is precisely what FISA purports to do. It ostensibly prohibits national-security eavesdropping (and, since 1994, physical searches) unless the executive branch can satisfy a federal judge — one of eleven who sit on a specially created Foreign Intelligence Surveillance Court — that there is probable cause that the subject it seeks to monitor is an “agent of a foreign power” (generally either a spy or a member of a foreign terrorist organization).
FISA does not aim to restrict the power to eavesdrop on all conversations. Communications that are entirely foreign — in that they involve aliens communicating overseas, for example — are exempted, as are conversations that unintentionally capture “U.S. persons” (generally, American citizens and permanent resident aliens), as long as these communications are intercepted outside the U.S. But where it does apply, FISA holds that the president — the constitutional officer charged with the nation's security — is powerless to eavesdrop on an operative posing a threat to the United States unless a judge — who need not possess any national-security expertise — is persuaded that the operative is a genuine threat. One suspects that such a system would astonish the Founders.
THE BOUNDS OF FISA
Does the NSA program violate FISA? That question is difficult to answer with certainty. The program remains highly classified, and many of its details are not publicly known, nor should they be. Much has been made of the fact that FISA approval is required to intercept calls into or out of the United States if an American is intentionally being targeted. But scant attention has been given to FISA's caveat that such conversations are protected only if their participants have a reasonable expectation of privacy. It is difficult to imagine that Americans who make or receive calls to war zones in, say, Afghanistan or Iraq, or to al-Qaeda operatives anywhere, can reasonably expect that no one is listening in.
Nevertheless, it would not be surprising to learn that at least some of the NSA monitoring transgresses the bounds of FISA. For example, the statute mandates — without qualification about the reasonable expectation of privacy — that the government seek a judicial warrant before eavesdropping on any international call to or from the U.S., if that call is intercepted inside our borders. A distinction based on where a call is intercepted made sense in 1978. Back then, if a conversation was intercepted inside our borders, its participants were almost certain to include at least one U.S. person. But modern technology has since blurred the distinction between foreign and domestic telephony. Packets of digital information are now routed through switches inside countries (including, predominately, the U.S.) where neither the sender nor the recipient of the call is located. The NSA has capitalized on this evolution, and is now able, from within the U.S., to seize calls between Tikrit and Kabul, or between Peshawar and Hamburg. If done without a warrant, those intercepts present no FISA problem, because all the speakers are overseas. But it's hard to believe that the NSA is using this technology only to acquire all-foreign calls, while intercepting calls between, say, New York and Hamburg only from locations outside the U.S.
Perhaps that is why the Bush administration's defense has been light on the abstruse details of FISA and heavy on the president's inherent Article II power — although carefully couched to avoid offending Congress and the FISC with suggestions that FISA is at least partly unconstitutional. Essentially, the administration argues that FISA is beneficial in ordinary times and for long-term investigations, but that it did not and cannot repeal the president's independent constitutional obligation to protect the country: an obligation that was explicitly reserved even by President Carter, who signed FISA; that has been claimed by every president since; and that is uniquely vital in a war against thousands of stateless, stealthy terrorists, in which both a “probable cause” requirement and a sclerotic bureaucracy for processing warrant applications would be dangerously impractical.
In advancing this argument, the administration finds much support in the one and only decision ever rendered by the Foreign Intelligence Court of Review — the appellate court created by FISA to review FISC decisions. That decision came in 2002, after a quarter-century of FISA experience. Tellingly, its context was a brazen effort by the FISC to reject the Patriot Act's dismantling of the “wall” that prevented intelligence agents and criminal investigators from pooling information. In overruling the FISC, the Court of Review observed that “all the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” Notwithstanding FISA, the Court thus pronounced: “We take for granted that the President does have that authority.”
The administration has also placed great stock in Congress's post-9/11 authorization of “all necessary and appropriate force” against those behind the terrorist attacks. While this resolution did not expressly mention penetrating enemy communications, neither did it explicitly include the detention of enemy combatants, which the Supreme Court, in its 2004 Hamdi decision, found implicit in the use-of-force authorization because it is a “fundamental incident of waging war.” Capturing intelligence, of course, is as much a component of waging war as capturing operatives. Any other conclusion would lead to the absurdity of the president's having full discretion to kill terrorists but needing a judge's permission merely to eavesdrop on them.
FISA aside, the administration stresses that the NSA program fits comfortably within the Fourth Amendment. That Amendment proscribes unreasonable searches, not warrantless ones — and it is thus unsurprising that the Supreme Court has recognized numerous exceptions to the warrant requirement that are of far less moment than the imperative to protect the country from attack. Plainly, there is nothing unreasonable about intercepting potential enemy communications in wartime. Moreover, the courts have long held that searches conducted at the border are part of the sovereign right of self-protection, and thus require neither probable cause nor a warrant. Cross-border communications, which might well be triggers of terror plots, are no more deserving of constitutional protection.
Critics have made much of a lengthy analysis published on January 6, 2006, by the Congressional Research Service that casts doubt on the administration's core contentions. Media have treated the report as bearing special weight because the CRS is a non-partisan entity. But that does not mean the CRS is objective. “The sole mission of CRS,” it explains on its website, “is to serve the United States Congress.” Yet the issue at stake is precisely a separation-of-powers dispute.
While the CRS study is an impressive compilation of the relevant law, it resorts to a fairly standard tactic for marginalizing executive power: reliance on the concurring opinion by Supreme Court Justice Robert Jackson in a 1952 case involving President Truman's failed effort to seize steel mills — a move Truman justified by referring to the exigencies of the Korean War. Jackson saw executive power as waxing or waning along a three-stage scale, depending on whether a president acted with the support, the indifference, or the opposition of Congress. On this theory, a statute like FISA could curb a president's inherent constitutional authority. The fatal problem with the Jackson construct, however, has always been that it makes Congress, not the Constitution, the master of presidential authority. It disregards the reality that the executive is a coequal branch whose powers exist whether Congress acts or not. But the CRS prefers Jackson's conveniently airy formula, which failed to command a Court majority, to relevant opinions that don't go Congress's way, such as that of the Foreign Intelligence Court of Review — which, unlike the Supreme Court, was actually considering FISA.
Frustrated by its inability to move public opinion, the Left is now emphasizing the large “volume of information harvested from telecommunication data and voice networks,” as the Times breathlessly put it, “without court-approved warrants.” But this is pure legerdemain. When we refer to “information” from “telecommunication data,” we are talking about something that, legally, is worlds apart from the content of telephone calls or e-mail messages.
These data do not include the substance of what people privately say to one another in conversations, but rather comprise statistical facts about the use of telecommunications services (for example, what phone number called another number, the date and time of the call, how long it lasted, etc.). Court warrants have never been required for the acquisition of such information because, as the Supreme Court explained over a quarter-century ago in Smith v. Maryland, telecommunications data do not implicate the Fourth Amendment. All phone and e-mail users know this information is conveyed to and maintained by service providers, and no one expects it to be private.
Analyzing such data is clearly different from monitoring the calls and e-mails themselves. For our own protection, we should want the government to collect as many of these data as possible (since doing so affects no one's legitimate privacy interests) in order to develop investigative leads. That's how a country manages to go four years without a domestic terror attack.
Yet the Left's rage continues, despite the public's evident disinterest in the mind-numbingly technical nature of the dispute, and despite the obvious truth that the NSA program was a bona fide effort to protect the nation from harm, not to snoop on Americans — only a tiny fraction of whom were affected, and those with apparent good reason. The controversy is a disquieting barometer of elite commitment to the War on Terror. As recently as two years ago, when “connecting the dots” was all the rage, liberals ignored eight years of Clintonian nonfeasance and portrayed the Bush administration as asleep at the switch while terrorists ran amok. Now they ignore President Clinton's insistence on the very same executive surveillance power that the current administration claims and caricature Bush as the imperial president, shredding core protections of civil liberties by exaggerating the terror threat. Either way you slice it, national security becomes a game in which necessary decisions by responsible adults become political grist, and, if they get enough traction, phony scandals. What remains real, though, is the danger to Americans implicit in any system that can't tell a war from a crime.
Mr. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies and a contributor to National Review Online.