February 02, 2006, 8:53 a.m.
National Security by Committee

Setting the stage for what promises to be a contentious hearing next Monday on the National Security Agency’s wartime signals-intelligence surveillance, Senate Judiciary Committee chairman Arlen Specter has sent Attorney General Alberto Gonzales a set of pointed questions about the program. The Bush administration describes the NSA’s monitoring of suspected al Qaeda communications into and out of the United States as a “terrorist surveillance program.” Its aim is the creation of an early-warning system to prevent a reprise of the 9/11 attacks. But Specter’s concerns do not even address the importance of the program to our national security. Rather, they are dry and often far-fetched legalisms that evince an interest primarily in defending the turf Congress claimed in 1978 by passing the Foreign Intelligence Surveillance Act (FISA).

Citing jurisprudential rules of statutory construction, Specter presses Gonzales on whether Congress’s post-9/11 authorization of military force — the basis of the administration’s contention that Congress authorized wiretapping of enemy communications — can fairly be said to have “repeal[ed]” FISA by implication. But this question is misleading: The administration has never contended that FISA was repealed, and indeed continues to regard the FISA process as a valuable tool for long-term intelligence investigations.

The NSA program, by contrast, involves eavesdropping authority beyond the scope of FISA. Court precedents indicate that the president has inherent authority under Article II of the Constitution to conduct surveillance, even in peacetime, to thwart foreign threats. If the Constitution does vest the executive with such authority, Congress cannot statutorily restrict it. Specter’s apparent response to this inconvenient fact is to ask Gonzalez whether “President Carter’s signature on FISA in 1978, together with his signing statement” was “an explicit renunciation of any claim to inherent Executive authority . . . to conduct warrantless domestic surveillance when [FISA] provided the exclusive procedures for such surveillance.” But here Specter simply begs the question of whether the president possesses constitutional authority to conduct wiretapping in the first place. If, as the judiciary has repeatedly found, the answer is yes, it does not matter whether Carter mistakenly believed he was renouncing such authority.

There is in fact nothing new about presidents’ taking action in the security interests of the United States despite statutes that purport to pare down their executive authority. Case in point is another 1970s-era incursion into presidential commander-in-chief powers, the War Powers Resolution, a statute that every president since its enactment has viewed as unconstitutional. In 1999, President Clinton blatantly and unapologetically disregarded it in committing U.S. forces to NATO operations in Kosovo — and his doing so provoked no summoning of Janet Reno to the Judiciary Committee woodshed, let alone calls for impeachment.

To navigate around this counterexample, Specter introduces an interesting innovation: He suggests that a law enacted by a legislative supermajority over a presidential veto (as was the War Powers Resolution in 1973) is somehow less legitimate (and thus, presumably, more permissible to ignore) than laws like FISA, which presidents have signed. Anyone as expert in the law as Senator Specter is should know that this distinction is specious. (We can only imagine what Specter would say if President Bush declined to enforce all federal law that has not been graced by the presidential pen.) The real question is not whether FISA’s being signed by a sitting president makes it somehow “more legitimate” than the War Powers Act, but whether FISA, on its own merits, constitutes a legitimate restraint on executive power. Specter’s distinction does nothing to address that question.

Finally, the senator asks the attorney general why the administration did not come to Congress to seek alterations to FISA’s antediluvian framework. Let’s leave aside the obvious point that describing a top-secret program to 535 members of Congress would have guaranteed its compromise. (In the event, the NSA program was leaked to the New York Times even though only eight members of Congress, among a handful of others, were informed of it.) Specter’s question is strangely ironic, given that his hearing is slated to come only three days after crucial provisions of the Patriot Act are set to expire because Congress, mired in a typical logjam, has failed to renew it. If, after the slaughter of nearly 3,000 Americans, and in the midst of war with over 150,000 troops in harm’s way, Congress cannot rouse itself to reauthorize a watered-down version of security protections that it overwhelmingly passed only four years ago, why should anyone think it can swiftly overhaul something as complex and controversial as FISA?

Processes such as that specified by FISA, at least when they are periodically revised to account for new threat conditions and new technology, can have a useful disciplining effect on the executive branch. Nevertheless, the Constitution makes the president — not Congress and certainly not judges — singularly responsible for national security. If al Qaeda is ever to be successful in its continuing efforts to repeat 9/11 on an even more horrific scale, it must have the help of operatives inside this country, with whom it necessarily must communicate. President Bush has both the power and the duty to ensure that the government does everything it can to intercept those communications. Recent polls showing that Americans broadly support the NSA program should come as no surprise. Neither should the president’s confident tone as he continues to make a welcome and unapologetic defense of it. Monday’s hearing will be a snapshot of what national security by committee looks like — and why it’s something none of us should want.

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