Jewish World Review Feb. 6, 2006 / 8 Shevat, 5766

Paul Greenberg

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Amnesiac America | It was ages ago — namely, September of 2001 — when the president of the United States went before Congress and a nation still in shock to ask for the full panoply of wartime powers. Remember?

"We will direct every resource at our command," the president vowed, "every means of diplomacy, every tool of intelligence, every instrument of law enforcement, every financial influence, and every weapon of war — to the destruction and to the defeat of the global terror network."

Every tool of intelligence.

That phrase tends to be forgotten in the current hubbub over whether the president has violated the privacy of suspected terrorists who may be making calls to and from this country. That seems to be the burden of the latest accusation against this president.

But back then, it was clear the president — and the country — intended to take the terrorist threat seriously. And so did Congress — back then. It may have been September of 2001, but it felt like December of 1941. Congress moved swiftly to approve the Authorization for Use of Military Force, the functional equivalent of a declaration of war.

Not that the president and commander-in-chief needed congressional permission to defend the country, thanks to the foresight of those who wrote the Constitution. But in a joint resolution passed three days after the September 11th attacks, Congress made the point explicitly, recognizing that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."

Remember all that?

Well, forget it. Because we've avoided another disastrous attack on American soil for so long — more than four whole years — that now we can relax and turn on each other instead of the enemy.

Today the president's more vociferous critics claim that his power to defend the country ends at the water's edge, at least if the issue is whether the government can monitor international calls to and from these shores without a warrant.

Welcome to this new era — and this new concept of war in which enemy prisoners, even illegal combatants captured in the field, are entitled to habeas corpus. In this new kind of war, the country's defenders need a warrant to spy on terrorists plotting our destruction — if said terrorists will just take the precaution of doing so in a call to this country.

We're told that FISA, the Foreign Intelligence Surveillance Act, doesn't allow warrantless wiretaps on such calls. "It's that simple," we're assured by The New York Times.

Really? But that act, passed in 1978, was meant to apply to domestic calls, not international ones. Nor was it meant to strip a president of his constitutional power, through the National Security Agency or any other arm of the executive branch, to defend the country against foreign threats. Jimmy Carter's attorney general, Griffin Bell, noted as much during his congressional testimony at the time.

A succession of court decisions said much the same thing since, among them a ruling from the FISA system's own Court of Review in the course of siding with the government's position in a disputed case: "(A)ll the other courts to have decided the issue held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

Speed is of the essence in these cases, and applying for a search warrant requires a lot of complicated steps. But doesn't the FISA law specifically allow the government to seek a search warrant up to 72 hours after a phone line has been tapped? What's the problem? Why not jump through all the hoops and do all the paperwork post-facto? Because it ordinarily takes a lot more than 72 hours for government lawyers to go through all the steps involved in obtaining such a warrant. The process isn't designed for speed.

Besides, there have been a lot of changes in telecommunications since 1978, when the FISA statute was enacted, as you may have noticed if you have a cell phone. Using spy satellites and high-speed electronic databanks and who knows what still-secret techniques — the whole program was secret before The New York Times blew its cover — the NSA can search through millions, even billions, of phone calls and Internet transmissions. And come up with suspicious phone numbers or other telltale bits of information that lead to a suspect. Should we demand that the feds obtain a warrant for every one of those databytes? Please.

Why not amend the FISA statute to make it crystal-clear that the president has the authority to conduct such intelligence-gathering operations? Because it would immediately become a hot political issue. Indeed, it already is. And after all the secret briefings and accompanying leaks, the public hearings and bitter debates that it would take to change FISA, there would still be no assurance that the law would be improved rather than further confused. And in the process, other secrets would doubtless be revealed to the enemy. The only sure result would be to further erode the president's constitutional authority — and duty — to protect the country from another attack.

Remember the notorious wall that prevented the FBI and CIA from exchanging information about foreign threats before 9/11? Will the current debate succeed only in erecting a new impediment that will make just as little sense?

To quote Victoria Toensing, former chief counsel for the Senate Intelligence Committee: "It took 9/11 for the Congress to pass the amendment breaking down the 'wall,' which had been on the Justice Department's wish list for 16 years. And that was just the simple tweak of changing two words. The issues are vastly more complicated now, requiring an entirely new technical paradigm, which could itself become obsolete with the next communications innovation."

Yes, technology does tend to develop so much faster than the laws regulating it. Not to mention the politicians trying to control it. Think of all the nerds it takes to run these sophisticated programs 24/7 at NSA while the rest of us sleep soundly through the night. I picture them as rank on rank of white-shirted, crew-cutted techs with one each pocket protector and utility CD. And every one of them deserves our heartfelt thanks. They ought to be saluted, not undermined.

The president's critics wrap themselves in the Fourth Amendment's protection against unreasonable searches and seizures, but what could be more reasonable than such searches in such wartime circumstances? Our rights deserve more respect; they shouldn't be used as just political fodder. Instead, the president is pronounced guilty in the august chambers of The New York Times editorial offices, where the law is "that simple." Not to say simplistic.

There is no evidence of the president's using this program to snoop on political enemies at home — as in the Filegate scandal during the last administration. This is strictly an intelligence program directed against a foreign enemy, and a rather sophisticated and carefully monitored program at that. We ought to be impressed. And assured.

Beyond all the sound and fury surrounding this issue, one thing is clear: If the NSA, FBI and CIA don't manage to stop the next terrorist attack, and the enemy does get through again, this whole discussion is going to seem awfully abstract amidst all the death and destruction.

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. Send your comments by clicking here.

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