Which of these two alternatives will make America safer? The United States government will intercept communications from al Qaeda operatives overseas and their agents or enablers in the United States in the fastest, most efficient way possible, even if it means not obtaining a warrant beforehand. Or, if the government wants to intercept phone calls or e-mails between al Qaeda operatives overseas and their agents or enablers on American soil, government lawyers will have to spend hours, days, perhaps even weeks compiling legal arguments and factual evidence of the kind and quality that would hold up in court should any of the parties ever later be charged with a crime in U.S. courts.
When all is said and done in the debate over the National Security Agency’s (NSA) surveillance program, these are the choices, which became clear if you were listening carefully to the hearings before the Senate Judiciary Committee this week. The first option describes what the president has directed the NSA to do. The second option is what the Foreign Intelligence Surveillance Act requires (although the administration claims FISA is not the last word on the president’s authority).
Democrats ought to be concerned by polls that show most Americans want the government to intercept al Qaeda communications, even — perhaps especially — those involving persons living here, as were all of the 9/11 attackers before they flew airplanes into our buildings. Maybe this explains why some Democrats are talking about amending FISA to allow the NSA program rather than impeaching the president — which would certainly be a legitimate course of action if they truly believed he was recklessly and purposely disobeying the law. Sen. Leahy argued at the hearings that "We all agree that if you have al Qaeda terrorists calling, we should be wiretapping them." Of course he went on to say that "instead of doing what the president has the authority to do legally, he decided to do it illegally without safeguards." Yet the senator doesn’t seem interested in drawing up articles of impeachment, but instead almost pleaded with the administration to propose new legislation to fix what he considers the problem.
Unless you are a confirmed Bush hater — and they seem to be legion these days, thanks in large part to the irresponsible rhetoric of Congressional Democrats — it is simply irrational to believe that the president’s purpose is to flout the law through this program, much less spy on ordinary Americans. We are at war, something Osama bin Laden and Ayman al Zawahiri understand, even if Ted Kennedy and Pat Leahy appear not always fully to comprehend the fact. Congress has authorized the president, in his constitutional role as commander in chief, to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" of Sept. 11, 2001, in order to prevent "any future acts of international terrorism against the United States." As Attorney General Alberto Gonzales testified this week, it flies in the face of reason to assume this means the president can order bullets and missiles fired at al Qaeda but cannot direct the NSA to listen in on al Qaeda phone calls or intercept their e-mails.
Opponents of the NSA program dressed up their criticisms in constitutional and legal jargon, but the battle is really over turf. All the Democrats on the committee and at least two of the Republicans (Chairman Arlen Specter and Sen. Lindsey Graham) seem as concerned about protecting Congressional prerogatives as they do the American people. They want the president to come to Capitol Hill, hat in hand, to seek permission to do what the administration argues the Constitution already permits. So far, the administration is standing firm, which is the proper course. If Congress insists on encroaching on the president’s authority, it should be tested in the courts — which have pretty consistently sided with the administration in previous challenges to his authority on similar matters.