There are politically motivated criminals in our government who should be unmasked and punished to the fullest extent of the law. These people have leaked some of our most sensitive secrets and damaged our national security for no reason other than to discredit President Bush. Forget the Plame nonsense. That — according to a CIA assessment — caused no damage at all. No, I’m talking about the leaks of the secret CIA detention facilities in Europe and elsewhere where terrorist detainees are kept. I’m talking about the leak of a top-secret satellite program, apparently by three U.S. senators. And I’m talking about last week’s New York Times report about the NSA’s domestic intelligence gathering effort that’s paying off handsomely. Or was, until the leakers told the Times.
Friday, in a report that the White House asked not be published because it could jeopardize ongoing anti-terrorist operations, the Times revealed that in 2001 the president authorized the National Security Agency to collect intelligence from conversations routed through the United States and possibly including people within the United States. And the media feeding frenzy aimed at declaring George W. Bush a criminal started all over again.
It’s pretty clear that NSA’s domestic intelligence gathering was — and is — legal. But before we get to that, we have to set the context for this debate correctly, which is more than the Times, the Washington Post, or any of the other politico-media will do. We need only two data points to accomplish that.
First, the last time a war was fought on American soil, the president then didn’t merely authorize intelligence gathering within our borders, he suspended the writ of habeas corpus for anyone held in military custody (even though we didn’t yet have a base at Gitmo), and declared that anyone opposing the war would be tried and punished under martial law in military courts. Thank heaven that George Bush isn’t as radical as Abraham Lincoln was when he signed that proclamation in September 1862. Or as radical as FDR was in interning Japanese citizens in World War II.
Second, the price of inaction in the war against terrorists is too high. We know, from Mansour Ijaz’s accounts and from the admissions Clinton national security adviser Sandy Berger has made in several interviews, that the Clinton administration turned down Sudan’s repeated 1996 offers of bin Laden on a silver platter because its lawyers didn’t believe we had enough evidence to indict him in a U.S. court. Instead of telling the lawyers to find a way to put OBL out of business, the Clintons took the easy way out their lawyers had provided and let bin Laden get away. Now, we have a president who apparently tells his lawyers what Andrew Carnegie once told his.
In what may be an apocryphal story, 19th century industrial baron Carnegie, in a long meeting with his planning staff, endured a few “you can’t do that” objections from a new lawyer. Carnegie took the young man into the hall and fed him a dose of reality: “Young man, I don’t pay you to tell me what I can’t do. I pay you to tell me how I can do what I want to do.” And that sums up President Bush’s approach to the Foreign Intelligence Surveillance Act.
FISA requires that intelligence gathering regarding conversations to which “U.S. persons” are a party can only be done pursuant to a search warrant issued (usually in secret) by the special FISA court, made up of sitting U.S. district court judges and located in the Department of Justice building in Washington.
Second, the FISA court issues warrants based on findings of probable cause, like other U.S. courts issuing criminal search warrants. There are too many situations — like the one we were in before 9-11 — in which too many possible terrorists are talking to each other and their helpers to sort them out one by one and get individual warrants. Which is why the law, and the regulations that implement it, allow the Attorney General to bypass the FISA court.
The regulations implementing FISA clarify the law’s exceptions to the requirements for a FISA court warrant. U.S. Signals Intelligence Directive, dated July 27, 1993, is the primary regulation governing NSA’s operations. It is a secret document. (We at TAS, unlike the NYT, never, ever, disclose government secrets that may damage national security. What follows is taken from a declassified version obtained from an open source.)
Under Section 4 of USSID 18, communications which are known to be to or from U.S. persons can’t be intentionally intercepted without: (a) the approval of the FISA court is obtained; OR (b) the approval of the Attorney General of the United States with respect to “communications to or from U.S. PERSONS outside the United States…international communications” and other categories of communications including for the purpose of collecting “significant foreign intelligence information.”
USSID 18 goes on to allow NSA to gather intelligence about a U.S. person outside the United States even without Attorney General sanction in emergencies “when securing the approval of the Attorney General is not practical because…the time required to obtain such approval would result in the loss of significant foreign intelligence and would cause substantial harm to national security.”
So FISA itself and USSID 18 provide a lot of swinging room for what the president ordered. If the people subjected to the intelligence gathering weren’t “U.S. persons,” if Attorney General Gonzales made certain findings (which he did, according to several accounts) and if the NSA went ahead because it reasonably believed it would lose significant foreign intelligence if it held its hand, the operation is legal. Period. Everyone who is ranting and raving about illegality has neither the facts (most of which we don’t know) or the law and regulations (which weigh heavily in favor of legality) on their side.
In his Saturday radio address, the president said that the NSA program he authorized has been reviewed over and over, and reauthorized by him more than three dozen times:
The activities I authorized are reviewed approximately every 45 days. Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland. During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation’s top legal officials, including the Attorney General and the Counsel to the President. I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.
Illegal? I don’t think so. A good idea? No, a great idea. Many of the congressional Dems whining the loudest about the president breaking the law (such as Sen. Carl Levin, ranking Dem on the Armed Services Committee) were almost certainly among those who were briefed repeatedly on the program since it began in 2001. In short, the Dems’ objections are as hollow as the people shouting them to the television cameras. Let Congress ask its questions, and answer some as well. (Such as why weren’t they concerned about this when they were briefed on it four years ago?) But let the intelligence be gathered.
America has lived in the shadow of 9-11 for more than four years. Everyone expects more terrorist attacks on our shores, but none has yet occurred. One reason for that is probably the NSA domestic intelligence gathering program.
We can do a lot, and must do it all. Spying on aliens and some “U.S. persons” here in accordance with the law, asking our allies to spy on Americans overseas, sharing intelligence gathered abroad with law enforcement authorities here, and much more. Our Constitution and laws set broad bounds for intelligence gathering. We should do everything within those bounds. Everything.
TAS contributing editor Jed Babbin is the author of Inside the Asylum: Why the UN and Old Europe Are Worse Than You Think (Regnery, 2004).