Still, the left-libertarian fear of endless war was ill-conceived. That the war could not end in a conventional way did not mean it would not end — just that we’d need unconventional metrics to tell us it when was over. And because we eschew even naming the enemy, it is only natural that these metrics would involve ourselves, our sharply altered priorities.
How fitting, in our story, that the National Security Agency should serve as the stable where the watchdog failed to bark when Silver Blaze vanished.
It seems like only yesterday, though it was late 2005, when the New York Times disclosed the NSA’s warrantless wiretapping. In what President Bush dubbed the “Terrorist Surveillance Program” (TSP), the NSA globally monitored enemy communications — including those crossing U.S. borders — without court authorization. This was back in the days before President Obama systematically ignored statutes and court rulings, so the Left was not embarrassed to feign outrage over the TSP’s violation of FISA. Some Democrats even called for Bush to be impeached.
In response, the national-security Right barked ferociously. Bush was merely doing what had been done by every wartime commander-in-chief in American history, we countered. And he was doing it because it is the executive branch, not the judiciary, that is constitutionally responsible for protecting the nation and gathering intelligence against foreign enemy operatives. The federal courts had long acknowledged presidential supremacy in this realm. If something was unconstitutional, we proclaimed, it was not Bush’s effort to safeguard American lives but FISA’s design on usurping the president’s Article II powers.
The FISA controversy peaked in the latter half of Bush’s second term. Just as we on the national-security right had feared, an activist FISA court claimed the intelligence community needed judicial permission to eavesdrop even on non-Americans outside the United States. Quite apart from FISA’s dubious constitutionality, the statute was also stuck in the antediluvian technological world of 1978, the year it was enacted. Intended to target foreign agents operating inside our country, it was never meant to intrude on surveillance of aliens outside our borders. It thus focused on U.S. phone-company lines. But modern technology routes even foreign-to-foreign phone calls, e-mails, texts, and tweets through American telecom hubs. The FISA court exploited this evolution to claim that the NSA and CIA needed permission from a judge in Washington even to monitor, say, a jihadist in Afghanistan calling his emir in Pakistan.
Had such an absurd suggestion been made in 1978, FISA would never have passed. The ruling threatened to shut down foreign intelligence collection in the middle of a war against a secret international terror network. So the national-security Right, again, made strenuous arguments, rooted in precedent, that foreign intelligence was an executive-branch function in which the courts had no business interfering. The result, though far from perfect, was an overhaul of FISA that freed the president and the NSA to target foreign enemies for surveillance with minimal judicial oversight.
The same spirited defense of wartime executive power also informed the debate over the PATRIOT Act, very much including its controversial business-records provision — Section 215. Records of subscriber usage maintained by service providers such as telephone companies — called “third-party” records because they are the property of the provider, not the subscriber — enjoy no Fourth Amendment protection. They have always been freely subpoenaed, with virtually no judicial oversight, by law-enforcement agents exercising the executive branch’s police powers. The objective of the PATRIOT Act was to vest equal investigative authority in national-security agents (the FBI’s domestic-security division), on the theory that protecting our country from mass-murder attacks was a higher priority than probing, say, a run-of-the-mill check-kiting scheme.
To the contrary, the Left, which views counterterrorism as a law-enforcement issue, and libertarians, who are hostile to surveillance, wanted the FISA court to micromanage national-security investigations. Overwhelmingly, Republicans and conservatives countered that it was for the executive branch, not the judges, to decide what threats should be investigated. National-security agents, we insisted, should have at least as much license to compel third-party records as do prosecutors and police.
Our full-throated defense of executive power won the day. The national-security Right beat back the left-libertarian campaign to require the FBI to obtain a warrant from the FISA court in order to acquire business records. No proof of probable cause or reasonable suspicion would be required. In the negotiations, the losers were given a fig leaf: Unlike criminal investigators, the FBI’s national-security agents would have to represent — not prove, just represent — that the records were relevant to a legitimate national-security investigation. But it was meaningless: The executive branch would decide what was relevant, just as it does in law-enforcement cases. The FISA court would have no power to deny access to the business records.