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The War on the War on Terrorism

The Senate Judiciary Committee has issued subpoenas for documents concerning the legal basis of the Bush administration’s terrorist-surveillance program. The New York Times calls it “the most aggressive move yet by lawmakers to investigate the wiretapping program since the Democrats gained control of Congress this year.”

The program enabled the National Security Agency to monitor telephone calls and emails of persons in the United States, including U.S. citizens, whom the agency believed were linked to al Qaeda. The interception of such calls is the very core of counterterrorism. If our intelligence agencies are to connect the dots that will prevent another 9/11, these calls and emails constitute the critical dots.

The program was already damaged, if not completely compromised, when its existence was disclosed by the New York Times in December 2005. Senator Patrick Leahy, the chairman of the Judiciary Committee, and other allies of the Times on Capitol Hill are now coming in for the kill.

To be sure, the legal status of the program is a crown of thorny issues. In various memos and briefs prepared by the administration, they have relied on Congress’s 2001 Authorization to Use Military Force, which they claim trumps the Foreign Intelligence Surveillance Act (FISA) that formerly had governed all such wiretapping. They have also suggested that such surveillance is an inherent power of the President under Article II of the Constitution.

One of the most compelling briefs against the program was written by Louis Fisher, an estimable scholar at the Library of Congress, and I have yet to see it comprehensively answered. But I also have few doubts that, at the end of the day, the courts will side with the President on this one, based upon some variation of the premise that the Constitution is not a suicide pact. The fact is that if Bush had failed to authorize such monitoring, and we were struck by another major attack on our homeland that had been planned and executed by terrorists employing cross-border communications, that presidential lapse would itself probably be grounds for his impeachment.

All the same, one of the actions of the Bush administration that has long troubled me, and which has made it the target of withering criticism, was its failure to ask Congress to amend FISA when the program first began. The whole immensely damaging controversy would have been skirted if the administration, in the wake of 9/11, had simply worked with Congress to engage in this kind of surveillance within the framework of a revised law.

Why did that not happen?

We now have an answer: it can be found on page 238 of George Tenet’s new memoir. Tenet writes:

At one point in 2004 there was even a discussion with the congressional leadership in the White House Situation Room with regard to whether new legislation would be introduced to amend the FISA statute, to put the program on a broader legal foundation. The view that day on the part of members of Congress was that this could not be done without jeopardizing the program (emphasis added).

Is Tenet simply passing the buck by blaming Congress? I don’t think so, but since he does a lot of other buck-passing in his buck-passing memoir (see my analysis of it here), I can’t be sure. But Tenet has no particular reason to cover his tracks in this instance. For once, he had helped put in place an effective program.

If senior members of Congress of both parties rejected the idea of congressional action to amend FISA, the Judiciary Committee’s grandstanding now on this critical matter of national defense is even more disgraceful than it already appears.



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