Too little surveillance?

Decision Brief                                       No. 06-D 07                               2006-02-06

(Washington, D.C.): This is being written in a bedroom in Los Angeles once occupied by 2nd Lieutenant J.P. Blecksmith, a 2003 Naval Academy graduate and Marine who died for his country fighting to liberate Fallujah in the Fall of 2004. A larger-than-life picture of this magnificent young American provides both inspiration and a somber reminder of the context for another battle now breaking out in a Senate hearing room far from the fallen hero’s California home, but on the front lines of the War for the Free World.

At this writing, Attorney General Alberto Gonzales is fighting to preserve a national capability whose indispensability those in uniform, like the late Lt. Blecksmith, would appreciate intuitively: the ability to monitor enemy communications with sufficient speed and efficiency so as to be able to act on the intelligence to defeat our foes.

That the communications in question happen to penetrate our borders underscores an unhappy fact. Our enemies have been able to place operatives – and to develop the infrastructure needed to support them – inside the United States .

Battlefield Intelligence, by Any Other Name

The Bush Administration calls this battlefield intelligence collection effort the Terrorism Surveillance Program (TSP). It is the subject of hearings that will likely go on for some time in the Senate Judiciary Committee. Some of the committee’s members – notably its chairman, Sen. Arlen Specter, and its Democratic members led by Sen. Pat Leahy – however, prefer to portray this initiative as the mainstream media typically does, namely as “warrantless domestic spying.”

The Attorney General’s job in explaining and defending this vital signals intelligence (“sigint”) program is made considerably more difficult by two realities: 1) Despite the unauthorized disclosure of its existence last December by the New York Times, the Terrorism Surveillance Program run by the National Security Agency (NSA) remains highly classified. And 2) the more the enemy knows of about its capabilities, the less useful the TSP will be in detecting and thwarting the attacks here at home that they have told us are in preparation.

The Law is not the Issue

As a result, the hearings will presumably largely focus on matters of law – the constitutional authorities of the executive and legislative branches, the relevance of several statutes – including the 1978 Foreign Intelligence Surveillance Act (FISA) and the 2001Authorization for the Use of Military Force (AUMF) – and various legal precedents. To a layman, a few points seem disposative:

First, this president, like previous commanders-in-chief, has the constitutional responsibility to conduct battlefield surveillance in time of war. This includes, as the Attorney General put it to the Judiciary Committee “warrantless surveillance aimed at detecting and preventing armed attacks on the United States .” Such inherent authority has been explicitly recognized by, among others, the Clinton Justice Department. (See Andrew McCarthy’s splendid series of articles on the subject and citations at www.nationalreview.com.)

Second, the Congress effectively amended FISA with its adoption of the Authorization for the Use of Military Force when it authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.” Justice Sandra Day O’Connor, whose wisdom on the bench is frequently cited by those now critical of the Terrorist Surveillance Program, ruled for the majority in the 2004 Hamdi vs. Rumsfeld case. She found, among other things, that the AUMF authorized all “traditional incidents of waging war” – including “incidents” like detaining combatants (and intercepting communications), even though they were not explicitly mentioned in the legislation.

Not Enough Surveillance

The real question that should be asked at the present Judiciary Committee hearings – and that will surely be posed when there is another attack is: Did the Bush Administration engage in sufficient surveillance, not too much? Was it wise, in a concession to civil libertarians, to restrict the use of the NSA’s “sigint” tools, first, by requiring that one of the parties must be outside the country and, second, that they are tied to al Qaeda or an associated group?

What if a terror cell is already up-and-running inside the United States and, therefore, both parties are here? The government may not have sufficient evidence to get a warrant to monitor their communications either, just “reasonable grounds” for suspicion. Do we really want to remain ignorant of what might be afoot?

And what if the cell in question is tied to Hizb-ut-Tahrir, Tabligi Jamaat or Hamas, rather than al Qaeda? Would such Islamofascist organizations be eligible for monitoring, or not deemed sufficiently al Qaeda-associated to qualify? Even operatives working on behalf of al Qaeda may have no clear ties to that increasingly “virtual” network; Osama bin Laden is not known to have issued party cards to members of his terrorist team.

The Bottom Line

It may seem expedient at the moment for Senators to posture for the benefit of the New York Times‘ editorial board and to pander to the American Civil Liberties Union. They will be judged by history, though, for whether they asserted authority not theirs and, in so doing, denied the President authority legitimately his under the Constitution and the post-9/11 congressional resolution. Heaven help them if, worse yet, they manage in the process to compromise the sources and methods by which vital battlefield signals intelligence is captured.

Should that be the case, the legacy will be to set the stage for another, unintercepted attack – and, by popular demand, for vastly greater infringements on civil liberties after it occurs.