EDITOR’S NOTE: This piece appears in the January 30, 2006, issue of National Review.
Washington’s scandal du jour involves a wartime surveillance program President Bush directed the National Security Agency to carry out after al-Qaeda killed nearly 3,000 Americans on September 11, 2001. The idea that there is anything truly scandalous about this program is absurd. But the outcry against it is valuable, highlighting as it does the mistaken assumption that criminal-justice solutions are applicable to national-security challenges.
The intelligence community has identified thousands of al-Qaeda operatives and sympathizers throughout the world. After Congress overwhelmingly authorized the use of military force immediately following the 9/11 attacks, the president, as part of the war effort, ordered the NSA to intercept the enemy’s international communications, even if those communications went into and out of the United States and thus potentially involved American citizens. According to reports from the New York Times, which shamefully publicized leaks of the program’s existence in mid-December 2005, as many as 7,000 suspected terrorists overseas are monitored at any one time, as are up to 500 suspects inside the U.S.
As is typical of such wartime operations, the NSA program was classified at the highest level of secret information. It was, nevertheless, completely different from the kind of rogue intelligence operations of which the Nixon era is emblematic (though by no means the only case). The Bush administration internally vetted the program, including at the Justice Department, to confirm its legal footing. It reviewed (and continues to review) the program every 45 days. It briefed the bipartisan leadership of Congress (including the intelligence committees) at least a dozen times. It informed the chief judge of the federal Foreign Intelligence Surveillance Court (FISC), the tribunal that oversees domestic national-security wiretapping. And it modified the program in mid-2004 in reaction to concerns raised by the chief judge, national-security officials, and government lawyers.
Far from being a pretextual use of war powers to spy on political opponents and policy dissenters, the NSA program has been dedicated to national security. More to the point, it has saved lives, helping break up at least one al-Qaeda conspiracy to attack New York City and Washington, D.C., in connection with which a plotter named Iyman Faris was sentenced to 20 years’ imprisonment.
As potential scandal fodder, so unremarkable did the NSA program seem that the Times sat on the story for a year — and a year, it is worth noting, during which it transparently and assiduously sought to exploit any opportunity to discredit the administration and cast it as a mortal threat to civil liberties . . .
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