December 23, 2005
Congress Should Give Bush Power To Tap Terrorists
By
Mort
Kondracke
By all means, Congress should hold hearings to determine whether
President Bush had the authority to intercept communications involving
terrorist suspects in the U.S.
And, if he didn’t have the authority, Congress should give
it to him — forthwith.
Ideally,
Congress should tear down whatever barriers prevent the government
from getting court warrants to tap terrorists. But, if it can’t
do that, it should authorize no-warrant intercepts, subject to
eventual court review.
What newspapers
and Bush critics are characterizing as “domestic spying”
conjures up images of J. Edgar Hoover tapping the Rev. Martin
Luther King Jr. to get blackmail material or Richard Nixon ordering
taps on Vietnam war dissenters.
So far as is known in discussion since The New York Times
revealed the Bush wiretap policy, “domestic” refers
strictly to the American end of international calls between suspected
Al Qaeda operatives.
These are
not people exercising First Amendment rights to protest U.S. policy
in the Mideast. Al Qaeda leaders have openly declared intent to
use nuclear and biological weapons to kill as many Americans as
they possibly can.
Bush and
his defenders have repeatedly stated — legitimately —
that he’s been criticized for failing to “connect
the dots” on terrorist activity prior to Sept. 11, 2001,
and that his ordering National Security Agency intercepts are
his attempt to correct that error.
Senate Judiciary
Committee chairman Arlen Specter (R-Pa.) has promised hearings
on the program, and he should hold them, as should the House and
Senate intelligence committees.
Because of
the highly classified nature of the activity — including,
it’s been hinted, some secret technological advances —
the hearings must be closed.
But the committees
should issue a report on whether they think Bush had authority
to order the program and should recommend legislation, if necessary,
to allow him to proceed.
Bush and
his defenders claim that it’s too slow and cumbersome to
obtain warrants from the Foreign Intelligence Surveillance Court
when a terrorist target has been identified and an intercept needs
to be established quickly.
Critics respond
that the 1978 Foreign Intelligence Surveillance Act gives the
government 72 hours of emergency authority to conduct intercepts,
after which a court warrant must be obtained. It’s not clear
why that isn’t adequate for what Bush wants to do.
Whatever
roadblocks stand in the way of the administration’s getting
authority to monitor terrorist suspects effectively, though, Congress
should remove them.
The FISA
court should be empowered to insure that no administration can
misuse its authority to tap true domestic dissidents, but Congress
probably should lower the standard to allow NSA intercepts when
the government has “reason to believe” that terrorist
planning is under way, rather than “probable cause.”
If a 72-hour
emergency period is deemed inadequate, it ought to be extended.
If paperwork is a problem, it should be streamlined.
There should
never be another case like that of Al Qaeda operative Zacarias
Moussaoui, whose laptop computer couldn’t be examined prior
to Sept. 11 because the Justice Department did not think it could
get FISA court permission.
Congress
might also consider empowering the president, with expedited FISA
approval, to tap communications conducted entirely within the
U.S. If one terrorist in San Diego is plotting with another in
Chicago, the government ought to be able to use electronic surveillance
to stop them.
It would
be far better for Congress to write laws allowing the president
to do what needs to be done to protect the country than to let
Bush exercise his “inherent” presidential powers,
as he conceives of them.
The evidence
suggests that there are next to no limits to what Bush thinks
he can do as chief executive and commander in chief. By executive
order, he sealed all presidential records from public view for
25 years and decided, after Sept. 11, that he could imprison,
judge and condemn unlawful combatants without court review.
Early on,
he also got legal opinions from his minions that exempted him
from observing international law in the treatment of prisoners
and the Justice Department declared that he has “plenary”
power in the conduct of war — to the extent of initiating
it without Congressional involvement.
Congress
and the courts need to exercise legitimate authority to rein in
an imperial presidency, but they also need to use good judgment
in doing so.
It’s
not good judgment when Members of Congress erupted over the disclosure
of the identity of CIA operative Valarie Plame, but not over The
Washington Post’s disclosure that the U.S. maintains
secret detention facilities in Europe or The New York Times’
disclosure of the no-warrant intercept policy.
Attorney
Gen. Alberto Gonzales said that one reason Bush didn’t seek
Congressional authorization for domestic taps on terrorists is
that he got word that Congress wouldn’t grant it.
Now that
existence of the program is known — and it’s been
established that the Clinton administration believed it had authority
to conduct similar operations — Congress ought to act.
And if anyone
in Congress stands in the way of a president’s ability to
prevent a terrorist attack, they’re fair game the next time
they run for reelection.
Mort
Kondracke is the Executive Editor of Roll Call.
