- The Washington Times - Monday, February 6, 2006

Technology, terrorist methods and the means to counteract them are constantly changing. Will Congress change too?

If lawmakers act rightly in the wake of this week’s National Security Agency hearings, they will change the statutes that govern electronic surveillance to comport with what the Constitution inherently allows and what vigilance against terrorists requires. Not that it matters much: The president already has the authority to find and defeat our enemies. President Bush will be pursuing terrorists regardless of whether Congress signs on. The question is whether Congress remains a partner in the fight against terrorists or makes itself irrelevant.

To play a constructive role — something better than the current, thinly veiled obstructionism — it will first need to stop taking some of its members seriously. Like Sen. Patrick Leahy, Vermont Democrat, on Monday: “My concern is for peaceful Quakers who are being spied upon, and other law-abiding Americans and babies and nuns who are placed on terrorist watch lists.” None of which has anything to do with the NSA program, which tracks international calls with al Qaeda on one end. Sen. Arlen Specter, Pennsylvania Republican, is not far behind Mr. Leahy in his misapprehension of the NSA program.

Once it learns to ignore Pat Leahy and company, Congress should realize the function of the NSA’s surveillance. As Attorney General Alberto Gonzales put it yesterday: “It is the modern equivalent to a scout team sent ahead to do reconnaissance or a series of radar outposts designed to detect enemy movements,” he explained. “As with all wartime operations, speed, agility, and secrecy are essential to its success.” Would Congress have tried to thwart President Roosevelt’s intelligence operations after Pearl Harbor? That’s the question lawmakers should ask themselves. Any responsible lawmaker would have to say no.

The Constitution is not a suicide pact, as Justice Robert H. Jackson famously said. But in this case, it’s not even the Constitution that’s disputed; it’s a law from the 1970s which certain members of Congress think enables them to usurp the president’s inherent authority to protect the nation.

Note that every president, Democrat or Republican, has authorized foreign-intelligence surveillance without a court order since the Foreign Intelligence Surveillance Act became law in 1978.

Congress needs to think hard about how to reconcile its electronic-surveillance statutes with the president’s constitutional powers. If it doesn’t, it will become irrelevant. It will also waste valuable time and effort better spent finding and defeating terrorists.


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