Putting Judges in Charge of National Security

by Andrew C. McCarthy
The president’s one-sided panel arrives at a predictable result.

I’m not big on bipartisanship. Too often for conservatives in Washington, it’s a euphemism for surrender, or at least the indulgence of ever-expanding government. But there are a few things we need a central government for, none more vital than national security. Because a political community’s most important decisions are the ones made about its defense, it is essential that there be broad public buy-in. Compromise is essential.

President Obama, however, seems poised to challenge that premise. A report released this week by his hand-picked panel of progressive academics and pliant intelligence veterans recommends turning the clock back to pre-9/11 counterterrorism and turning control of intelligence-gathering over to the courts. The report lacks balance, and while it will please the political Left and doctrinaire libertarians, most Americans will be unnerved.

The president calls his one-sided panel the “Review Group on Intelligence and Communications Technologies.” It put me in mind of a panel composed very differently: the self-styled “Bipartisan Working Group of Former Government Officials.” That’s because I was a part of it. The working group assembled on its own nearly a decade ago to help members of Congress work through 17 PATRIOT Act provisions that were due to lapse unless reauthorized by statute. It was a good exercise.

The Democrats in our group included former Clinton officials who were suspicious of executive power, at least with a Republican in the White House. Consequently, they pushed for more court supervision over national-security efforts. The Republicans and conservatives, myself included, were at least equally suspicious of further judicial incursions into the quintessentially political realm of national defense and intelligence policy — incursions that began in the 1970s as an over-correction of Vietnam- and Watergate-era spying abuses.

The Left believed novelties like FISA — the 1978 Foreign Intelligence Surveillance Act that empowered a court to oversee the FBI’s monitoring of foreign terrorists and spies in our midst — were a smashing success that improved the discipline and civil-liberties consciousness of domestic-security agents. The Right tended to see them as a nuisance that dangerously enervated intelligence gathering, not least by erecting the infamous “wall” that prevented information sharing between law-enforcement and intelligence agents.

From fondness for FISA, it was a logical progression to the Clinton approach of treating international terrorism as a law-enforcement problem best addressed by court prosecutions. Our side saw this as a provocatively weak response to what was more sensibly seen as a national-security problem — more like a war than a crime, though obviously not a traditional war, either.

The difference was critical. If terrorism were a crime, the emphasis of counterterrorism policy would be due process and civil-liberties protections, which courts would inevitably inflate because judges are insulated from political accountability. If terrorism were a war, the counterterrorism emphasis would be national defense, primarily a political rather than a legal responsibility; thus, the response to terrorism would be more aggressive. The political branches are accountable to the public and, post-9/11, the public wanted terrorists eradicated, not merely indicted. From our right-of-center viewpoint, the nation was in a defensive war against jihadists whose tactic of choice was sneak mass-murder attacks; further judicial encroachments on intelligence-gathering were to be resisted.

You can debate who has the better of the argument — as we’ve been doing for 20 years. Policymaking, however, is a compromise business. A unilateral right-of-center proposal that cut back on the judicial role created by FISA and fully reestablished executive primacy over intelligence gathering and national defense would have had no chance of passing. Indeed, by 2004, with the Iraq War starting to go badly, the Left had recovered its footing and was already — in conjunction with libertarians — making some headway against the PATRIOT Act (initial passage of which Democrats had endorsed in near unanimity).

On the other hand, the 9/11 atrocities remained fresh enough that the public continued to support aggressive intelligence gathering and to oppose inflating due-process rights for terrorists. Thus, a unilateral Democratic proposal that put the judges in charge of national defense and read as if it had been written by the ACLU would similarly have been dead on arrival.

Throughout our vigorous internal debates, the working group recognized this reality. In the end, we compromised . . . and, to the extent it influenced Congress, the compromise was a success for the country. We recommended that all 17 PATRIOT provisions be reauthorized — enabling the FBI and the intelligence community to continue liberally gathering information, but with the addition of significant civil-liberties protections and oversight mechanisms to guard against executive excess. Congress eventually reauthorized the PATRIOT Act, essentially on the terms we’d suggested.

Flash forward to this week and President Obama’s panel. It is composed of only five members. Three are academics: Cass Sunstein, who served as regulatory czar in the president’s first regulation-happy term; Geoffrey Stone, a civil-liberties scholar (and the author of Perilous Times: Free Speech in Wartime, readers of which will find the panel report’s historical discussion familiar); and Peter Swire, a privacy-law expert who also worked in the Clinton administration. (I had the pleasure of debating Professor Swire on the PATRIOT Act’s controversial business-records provision in the Patriot Debates, a project of the American Bar Association’s Standing Committee on Law and National Security.) I have great respect for their scholarship, but all three are predisposed to elevate civil-liberties concerns over national-security needs. The president’s panel is rounded out by two intelligence-community veterans: former Clinton counterterrorism czar Richard Clarke, best known for his bitter criticism of the Bush administration during the 9/11 Commission hearings; and former Obama acting CIA director Michael Morell, best known for purging references to al-Qaeda and terrorism in the drafting of the agency’s fraudulent Benghazi “talking points” that have lived in infamy since Susan Rice repeatedly parroted them on national television.

The panel is thus exactly the one-sided echo chamber our bipartisan working group was not. “We reached a consensus with great ease,” Professor Sunstein told the Wall Street Journal after the report was released. Well, sure: Consensus is easy to achieve if you only consult people on one side of a contentious issue.

Predictably, the panel’s report would put federal judges in charge of our homeland defense. Government agents would not only need to represent to a court that they had a good-faith national-security purpose for seeking information that is not constitutionally protected; they would now have to prove it to the court’s satisfaction. The judge, not the president and intelligence agents, would decide what foreign threats were serious and what operatives should be investigated.

This is antithetical to the Framers’ conception. They gave no national-security role to the courts — not because judges are unreliable but because they are unaccountable politically. In a free, self-determining society, security decisions must be made by political actors answerable to the people whose lives hang in the balance. Courts do not answer to the voters, and because their job is to ensure fairness and protect individuals from government excess, they inexorably increase due-process safeguards over time. This is a fine thing if we are talking about peacetime law enforcement and Americans presumed innocent; it can be a perilous thing in wartime when enemies attack in stealth.

This is not to say that the executive branch should get carte blanche. It is to say that the appropriate check is Congress, which can legislate adequate protections and conduct searching oversight of the intelligence community. But turning our defense over to the courts would mean we no longer have control over it.

In the controversy over the NSA’s massive collection of telephony “metadata” — essentially records of phone usage, but not the content of calls and not, under program rules, the identities of subscribers to the phone numbers collected — it is easy to forget what the post-9/11 counterterrorism debate was about. At its core, it was over the nature of international terrorism: crime problem or national-security challenge?

This was the heart of the matter because, in the eight years prior to 9/11, the Clinton administration had made court prosecutions the point of its counterterrorism spear. The jihadists deployed bombs, we responded with subpoenas and indictments. Because the enemy had safe havens overseas where American courts and law enforcement cannot operate, the vast majority of terrorists could not be apprehended for court proceedings. Top terrorists such as Osama bin Laden, Ayman al-Zawahiri, and Khalid Sheikh Mohammed continued plotting mass-murder attacks with impunity despite being under indictment for years. Meanwhile, government agents argued internally over whether their cases were criminal or national-security investigations — a critical distinction because courts frown on the use of national-security surveillance authority in law-enforcement matters.

A nation that ties itself in legal knots becomes an inviting target for terrorists. And as we fettered ourselves ever tighter in the Clinton years, the jihad struck again and again: the World Trade Center, airliners over the Pacific, Khobar Towers, our embassies in East Africa, the U.S.S. Cole, and finally 9/11.

What brought the onslaught to a halt was the decision to subordinate legal processes to military and intelligence operations. That was the Bush counterterrorism approach — the one that worked so well that President Obama kept it substantially intact despite having campaigned against it.

So where should the counterterrorism balance be struck now between the Left’s infatuation with judicial processes, on the one hand, and the center-right preference for energetic intelligence and military strategies, on the other? No longer facing the prospect of another election, President Obama has decided he can arrive at the correct answer by consulting only one side of the debate. And he’s betting our lives on it.

— Andrew C. McCarthy is a senior fellow at the National Review Institute. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy.