The National Security Agency’s (NSA) “terrorist surveillance program” (TSP) has been the center of controversy since the New York Times revealed its existence in late 2005. Under the TSP, President Bush authorized interception of the international electronic communications of al Qaeda operatives, whether located in the United States or overseas. He did this outside of the Foreign Intelligence Surveillance Act (FISA), which ordinarily requires the government to obtain an order before listening in on U.S. wire or radio communications. Program critics, both in and out of Congress, have asserted that it violated the law. By and large, however, they also claimed to support the interception of these communications if FISA’s procedures were followed. They will now have the opportunity to prove their good faith.
Two weeks ago, Attorney General Alberto Gonzales announced that the Justice Department had reached an agreement with the special FISA court, which would in future oversee the TSP under that statute. Further, in an effort to satisfy the congressional judiciary and intelligence committees about the program’s details, the administration has taken the unprecedented step of turning over highly classified documents regarding the new procedures which have been described by administration officials as innovative and fully in accord with the needs of national security. Unfortunately, chances are that none of these measures will quiet the president’s critics. However, if the TSP as now administered within the FISA regime remains as robust as it was before, then the administration has a considerable achievement to its credit and deserves America’s support.
There have, of course, always been two very good reasons to monitor al Qaeda’s communications into and out of the United States. The first is to learn their plans, operational capabilities, and support system so as to thwart future attacks and to defeat al Qaeda on the battlefield. The second reason is to obtain evidence against al Qaeda operatives, and their American agents and supporters, which might be useful in later criminal trials. The president’s original non-FISA TSP served the first purpose; the new, FISA-based TSP apparently serves both purposes — and that is why it represents sound policy.
Of course, the United States’ fight against al Qaeda and its jihadist allies is a legally cognizable armed conflict to which the laws and customs of war apply. In the wake of al Qaeda’s September 11, 2001, attacks on the United States, President Bush and his advisers correctly concluded that the only credible response, both practically and legally, was military. This was a critical break with the Clinton administration’s refusal to take seriously the growing threat of extreme Islamism in the 1990s, even after a series of direct attacks on American military and civilian targets overseas, and also with the approach to global terror adopted by other previous administrations, including those of Presidents George H. W. Bush and Ronald Reagan. Treating the conflict with al Qaeda as a war has given the United States far more flexibility in meeting its national-security needs — on a number of different fronts — and plays to our strengths.
By contrast, the law-enforcement antiterror paradigm promoted by Europe and most of the American Left (and more than a few Democrats) plays to al Qaeda’s strengths. If this is not a war, and al Qaeda operatives are simply criminal suspects, they cannot be attacked without warning by U.S. forces anywhere in the world. That would be murder. “Suspects” must be investigated, indicted and then arrested — usually based on a judicial warrant. If they are located abroad, then international judicial assistance must be sought in the form of extradition requests and international arrest warrants. Once in American custody, criminal suspects — regardless of the gravity of their alleged offense — must be accorded all of the guarantees outlined in the Bill of Rights, including the right to a speedy and public trial by jury, and to reasonable bail.
Although this law-enforcement model, like the infamous “wall” between U.S. intelligence and law-enforcement activities finally removed by the U.S.A. Patriot Act, might well appear to be more protective of human rights than the war paradigm, treating jihadists as criminal defendants entirely ignores the basic human rights to life and security of the civilian populations al Qaeda targets. Its adoption would make the systematic disruption of transnational jihadi organizations and operations impossible, and more innocent people would die as a result. That is the bottom line, and that is why the Bush administration was right to treat the September 11 attacks as acts of war, and to respond accordingly.
At the same time, criminal law enforcement will always be a critical aspect of the war on terror. Under the laws of war, the United States is entitled to detain captured al Qaeda operatives until hostilities end. However, it can also bring criminal charges against them. Al Qaeda combatants, and individuals who perform certain support roles, are subject to trial in military courts — both under the laws of war and in accord with the Military Commissions Act passed by Congress last fall. Some al Qaeda supporters and sympathizers, however, do not fall within the category of combatants. These individuals are legally civilians, and can be tried only in the civilian courts. In such cases, FISA offers a significant advantage. This is because evidence obtained through surveillance authorized by a FISA order is legally admissible at trial.
As a general rule, the Constitution’s Fourth Amendment prevents the admission of evidence in a criminal trial that was obtained without a properly issued search warrant. There are important exceptions to this rule, one of which involves information developed through the conduct of otherwise lawful intelligence activities. Indeed, before FISA was enacted in 1978, the courts had recognized that the president has inherent constitutional authority to conduct warrantless surveillance, electronic and otherwise, for national-security purposes and that this information could be used in a later criminal trial.
There was, however, a catch. Only if the principal purpose of the warrantless surveillance had been national-security/intelligence gathering, rather than law enforcement, could the evidence be admitted in court. As the United States Court of Appeals for the Fourth Circuit explained in the leading case, although only the president can determine the intelligence needs of national security, “once surveillance becomes primarily a criminal investigation, the courts are entirely competent to make the usual probable cause determination, and because, importantly, individual privacy interests come to the fore and government foreign policy concerns recede when the government is primarily attempting to form the basis for a criminal prosecution.” (United States v. Truong, 629 F.2d 908, 915 (4th Cir. 1980)).
Of course, electronic surveillance often has multiple purposes, and the point at which an intelligence operation turns “primarily” into a law enforcement one is often unclear. FISA partially solved this problem by establishing a special panel of judges able to issue surveillance orders, which the courts recognized as the legal equivalent of a Fourth Amendment search warrant. As a practical matter, there was still a “principal purpose” requirement to be met, but the potentially shifting line between national security and law enforcement stopped being a problem. Moreover, the U.S.A. Patriot Act finally made clear that an order could issue so long as “a significant purpose” of the surveillance was to obtain foreign intelligence information.
Thus, bringing the TSP within FISA is a good deal. It gives the government something that it did not have before — a clear shot at obtaining admissible evidence in addition to valuable information about al Qaeda’s plans and organization — at little or no cost. If the new program is ultimately determined to have been too innovative, and is held to be inconsistent with FISA’s statutory text or the Constitution itself, the president can still fall back on his inherent constitutional authority to order electronic surveillance of the enemy in wartime, regardless of whether the particular agent is located in or out of the United States. This authority, which has been claimed by presidents since Lincoln’s day, was recognized by the FISA Court’s own appellate panel and is grounded in the president’s role as chief executive and commander-in-chief. It cannot be eliminated by Congress — in FISA or any other statute.
The president’s refusal to concede on this point has, of course, become the last refuge of the TSP critics. Determined to paint George W. Bush as some sort of a power-hungry despot who has broken the law — a threadbare caricature Bush haters have been enthusiastically darning since shortly after September 11 itself — administration opponents continue to demand investigations, prosecutions and — of course — impeachment because the president authorized the program to begin with. FISA, they note, provides criminal penalties for anyone engaging in electronic surveillance “under color of law except as authorized by statute.”
Inside or outside of FISA, however, the TSP has always been on firm legal ground. In addition to the president’s inherent constitutional power to intercept enemy communications, he could also rely on the Authorization for the Use of Military Force (AUMF) passed by Congress on September 18, 2001. The AUMF specifically authorized him to “use all necessary and appropriate force” against those responsible for the September 11 attacks. That was an “authorization by statute,” and the Supreme Court ruled as much in Hamdi v. Rumsfeld (2004), when it concluded that the AUMF was sufficient to meet the Anti-detention Act’s similar requirement that Americans cannot be detained “except pursuant to an act of Congress.”
In the face of this authority, the administration’s critics can only point to the decision of a federal District Court judge in Detroit, who held the TSP unconstitutional last August. To her credit, that judge (originally appointed by President Carter), made her own view of the whole business abundantly clear when she referred to “the War on Terror of this administration.” Not, in other words, the United States’ war — although it was authorized by Congress — but George W. Bush’s war. She went on to acknowledge the Supreme Court’s decision on the AUMF in Hamdi, but then sidestepped the issue by concluding that other constitutional provisions had been violated. Her opinion was described by the Washington Post as “neither careful nor scholarly,” and further, “as a guide to what the law requires and how it either restrains or permits the NSA’s program — her opinion will not be helpful.” The decision was stayed pending appeal by the United States Court of Appeals for the Sixth Circuit, and the whole case has arguably been mooted by the new arrangements.
Overall, if the administration is indeed right that the FISA TSP is just as robust and flexible as the old TSP, the Justice Department’s lawyers have done good work.