- The Washington Times - Saturday, February 11, 2006

“The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

So reads “S.J. Res. 23,” a Joint Resolution of the Congress, sponsored by then-Majority Leader Tom Daschle, South Dakota Democrat, and signed into law Sept. 18, 2001, seven days after the most devastating attack ever on U.S. soil.

Honest people may disagree whether Congress needed to give — or should have given — the commander in chief power “to use all necessary and appropriate force.” But the Senate voted 98-0 and the House 420-1 to pass Public Law 107-40 — giving him just such authority.

Now, in the fifth year of a war America did not start or want, Congress seems intent on reigning in the president’s ability to fight the Global War on Terror. That is clearly the intent of many — perhaps even a majority — on the Senate Judiciary Committee that grilled Attorney General Alberto Gonzales during a nine-hour-long public hearing this week. The issues — cloaked in a mind-numbing array of acronyms and the arcane jargon of intelligence collection — are really quite simple:

• First, since the 1970s, Congress has sought to circumscribe the president’s powers to collect intelligence and use military force by various laws — among them, the War Powers Resolution and FISA, the Foreign Intelligence Surveillance Act. During a war, does Mr. Bush — or any other commander in chief — have the inherent constitutional authority to gather all manner of intelligence on our enemies using a full range of electronic and other collection capabilities?

• Second, does Public Law 107-40 — widely described in Washington as the Authorization for Use of Military Force (AUMF) — supersede normal peacetime proscriptions in intelligence collection?

The Bush administration says “yes” in response to both questions. Many, perhaps most, in Congress seem prepared to say “no” to both. Setting aside the partisan rhetoric from the likes of Democratic Sens. Edward Kennedy and Pat Leahy, there are members who understand the stakes: a delicate balance between constitutionally-protected civil liberties of the American people — and the legality of intercepting communications between and among those plotting attacks on the American people.

What is not at issue is the ability of the National Security Agency (NSA) to collect such information — using methods never envisioned when FISA was written.

The Fourth Amendment is very explicit about, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” To enshrine these protections, FISA requires — with very limited exceptions — that a warrant be obtained before the government listens or peeks on Americans. Given what we now know of those who attacked us on September 11, and those who killed in Madrid, Bali, Casablanca and London, such “collection restrictions” make it possible to determine who plotted an attack in its aftermath — but unlikely we will be able to prevent such an attack.

A retired NSA official and friend put it this way: “Our problem, given the broad array of modern telecommunications technology, is that we don’t know what we have until we have it.” Put differently, we can monitor massive amounts of information between persons in the U.S. and others overseas. Any one of millions of messages, phone calls, faxes, e-mails or data transfers could order another September 11. Do we want our government to intercept and act on such communications and save lives? It has worked before.

Nineteen years ago this month, our intelligence services intercepted a message from an overseas capital instructing a terrorist “sleeper cell” in a Washington, D.C., suburb to assassinate a U.S. military officer living in Northern Virginia. The FBI alerted the target, and the Defense Department secretly moved the officer, his wife and children to a military base in North Carolina. The terrorists were apprehended as they prepared to carry out their attack. The technology used to detect the attack is still secret. The lives saved were mine and those of my wife and children.

Do we want our government to be able in the future to save lives like this — very likely on a far broader scale? If so, we should at least take the debate behind closed doors and stop risking the compromise of very sensitive collection capabilities.

Attorney General Gonzales put it succinctly in his testimony before the Senate Judiciary Committee this week: “Our enemy is listening. And I cannot help but wonder if they aren’t shaking their heads in amazement at the thought anyone would imperil such a sensitive program by leaking its existence in the first place — and smiling at the prospect that we might now disclose even more or perhaps even unilaterally disarm ourselves of a key tool in the war on terror.”

Failing to heed this advice is nothing short of a death wish.

Oliver North is a nationally syndicated columnist and the Host of “War Stories” on the Fox News Channel.


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