Never in history has it been so easy for a nation to forget that it is at war. At least during the Cold War, we had the omnipresent specter of nuclear holocaust to remind us of our conflict with the Soviets. Al-Qaida has failed to launch a successful terrorist attack on the U.S. in over four years and the military campaigns in Iraq and Afghanistan are at a safe distance, physically and psychologically. In short, it just doesn’t seem like we’re the midst of a capital-W, capital-T “War on Terror.”
A particularly horrific Iraqi insurgent attack or a blustering audio message from bin Laden may occasionally wrench us from blissful ignorance, but we quickly recede back into the illusion that war is far from our shores, that we’ve been driven into a delusive nightmare by the fear mongers in the Bush administration.
Certainly al-Qaida considers itself at war with America, given its continuing attempts to launch more terrorist attacks and its false overtures to peace. Even Congress recognizes that the War on Terror is ongoing, having issued what amounts to a full declaration of war after Sept. 11. Unfortunately, the reality that a global war is being waged is lost on a disturbing number of Americans and otherwise well-informed Yale students. The ease with which we forget this unpleasant fact has skewed the debate about the latest “scandal” of the Bush administration.
This month’s outrage happens to be the NSA surveillance program. The program has provoked unprecedented histrionics on the left, usually recognizable by words like “domestic spying,” “impeachment,” “sweeping,” “violation of civil liberties” and analogies to King George III, or some combination thereof. The indignation has even reached these pages (see Koffler’s “Surveillance should carry dire consequences for Pres. Bush,” 1/18).
The gnashing of teeth and rending of clothes aside, it is clear from what both the New York Times and Bush administration has revealed that the NSA surveillance program is not only entirely legal but eminently prudent. We know that the architect of Sept. 11 is plotting again — this time to surpass the destruction wrought by his first attacks on U.S. soil. If common-sense measures such as the NSA surveillance program and the Patriot Act had been in place then, Sept. 11 would have likely been prevented.
First, some basic context to dispel the reams of misinformation in the public sphere about the NSA program: It is selectively targeted at international calls to and from the U.S. involving suspected al-Qaida operatives. If you’re talking to a terrorist in Des Moines, the NSA isn’t listening. When the NSA monitors a call involving a U.S. citizen or anyone within the U.S., the name is withheld in the intelligence report unless he or she is the suspected terrorist.
The legal case for the NSA program is inextricably linked to the fact that we are a nation at war. The Constitution grants the President the exclusive right to conduct war under Article II after initial authorization from Congress. Intelligence gathering is just as an important dimension of war as, say, bombarding an enemy position — even more so when the enemy is an amorphous group of individuals that hides and plans its attacks among civilians.
The jurisprudence on the issue is unequivocal. When involving surveillance for national security purposes, the Supreme Court and appellate courts have, in more than five cases — unanimously and without exception — upheld the right of the President to conduct warrantless surveillance on suspected foreign agents or terrorists, even if they are U.S. citizens. The appellate court of the Foreign Intelligence Surveillance Court also agreed when, in 2002, it asserted that, “We take for granted that the President does have that authority.”
Presidents Lincoln, Wilson and Roosevelt all authorized wiretaps during wartime. Included was the surveillance of U.S. citizens — all without a warrant from a judge or an explicit authorization from Congress. That they possessed the authority to do so went unquestioned.
What complicates the issue is the Foreign Intelligence Surveillance Act of 1978, which, among other things, restricts the ability to monitor the communications of suspected foreign agents by requiring a warrant for the surveillance of any U.S. citizen. By the FISA appellate court’s own admission, such a requirement is unconstitutional, and as such, should be struck down.
So why didn’t the Bush administration seek to change FISA? First, because FISA, for all its faults and cumbersome legal relics from a hardwire communication past, does contain an exception that allows monitoring outside the FISA law “as authorized by [other] statute” (Sec. 109). That “other statute” in this case is the Congressional Authorization for the Use of Military Force issued after Sept. 11, which authorizes the President “to use all necessary and appropriate force” against suspected al-Qaida associates. Second, legislative changes to FISA would have required the public revelation of the secret NSA program, which thanks to the civic-minded New York Times, has already happened. Though FISA in its present form is unconstitutional, it does allow the President to circumvent the FISA court.
For any nation at war, the question of calibrating civil liberties with security is an important one. The NSA surveillance program, however, is not part of that debate. From what we know, it is clear that no civil liberties were violated, no reasonable privacy rights infringed, no laws broken. The forthcoming political theatrics in ACLU lawsuits and Congressional hearings will reveal these facts, and this cooked-up outrage du jour will be soon forgotten.
What is outrageous is not that the administration has finally taken common-sense steps to detect how, when and where al-Qaida will strike again; it is that they should have done so long ago.
Keith Urbahn is a senior in Saybrook College. He is an occasional columnist.