"[T]he president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
So reads "S.J. Res. 23," a Joint Resolution of the Congress, sponsored by then-Majority Leader Tom Daschle, D-S.D., and signed into law on Sept. 18, 2001, seven days after the most devastating attack that has ever occurred on American soil. Honest people may disagree about whether the Congress needed to give — or should have given — the commander in chief the power "to use all necessary and appropriate force." But the Senate voted 98 to 0 and the House 420 to 1 to pass Public Law 107-40 — giving him just such authority.
Now, in the fifth year of a war America did not start or want, the Congress seems intent on reigning in the president’s ability to fight the Global War on Terror. That is clearly the intent of many — perhaps even a majority — on the Senate Judiciary Committee that grilled Attorney General Alberto Gonzalez during a nine-hour-long public hearing this week. The issues — cloaked in a mind-numbing array of acronyms and the arcane jargon of intelligence collection — are really quite simple:
First, since the 1970’s, Congress has sought to circumscribe the president’s powers to collect intelligence and use military force by various laws — among them, the War Powers Resolution and FISA, the Foreign Intelligence Surveillance Act. During a war, does President Bush — or any other commander in chief — have the inherent constitutional authority to gather all manner of intelligence on our enemies using a full range of electronic and other collection capabilities?
Second, does Public Law 107-40 — widely described in Washington as the Authorization for Use of Military Force (AUMF) — supersede normal peacetime proscriptions in intelligence collection?
The Bush administration says "yes" in response to both questions. Many, perhaps most, in Congress seem prepared to say "no" to both. Setting aside the partisan rhetoric from the likes of Sens. Edward Kennedy and Patrick Leahy, there are members who understand the stakes: a delicate balance between Constitutionally protected civil liberties for the American people — and the legality of intercepting communications between and among those plotting attacks on the American people. What is not at issue is the ability of the National Security Agency (NSA) to collect such information — using methods that were never envisioned when FISA was written.
The 4th Amendment is very explicit that, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." To enshrine these protections, FISA requires — with very limited exceptions — that a warrant be obtained before any government listening or peeking is conducted against Americans. Given what we now know of those who attacked us on Sept. 11, and those who killed in London, Madrid, Bali, and Casablanca, Morocco, such "collection restrictions" make it possible to determine who plotted an attack in its aftermath — but unlikely that we will be able to prevent such an attack before it occurs.
A retired NSA official and friend put it this way: "Our problem, given the broad array of modern telecommunications technology, is that we don’t know what we have until we have it." Put differently, we have the ability to monitor massive amounts of information between persons in the United States and others overseas. Any one of millions of messages, phone calls, faxes, e-mails or data transfers could be an instruction to carry out another Sept. 11. Do we want our government to intercept and act on such communications before an attack and save lives? It has worked before.
Nineteen years ago this month, our intelligence services intercepted a message from an overseas capital instructing a terrorist "sleeper cell" in a Washington, D.C. suburb to assassinate a U.S. military officer living in northern Virginia. The FBI alerted the target, and the Department of Defense secretly moved the officer, his wife and children to a military base in North Carolina. The terrorists were apprehended as they prepared to carry out their attack. The technology used to detect the attack is still secret. The lives that were saved were mine and those of my wife and children.
Do we want our government to be able to save lives like this — very likely on a far broader scale — in the future? If so, then at the very least, we should take the debate behind closed doors and stop risking the compromise of very sensitive collection capabilities.
Attorney General Gonzales put it succinctly in his testimony before the Judiciary Committee this week: "Our enemy is listening. And I cannot help but wonder if they aren’t shaking their heads in amazement at the thought that anyone would imperil such a sensitive program by leaking its existence in the first place — and smiling at the prospect that we might now disclose even more or perhaps even unilaterally disarm ourselves of a key tool in the war on terror." Failing to heed this advice is nothing short of a death wish.