- The Washington Times - Friday, January 6, 2006

“We will tell you where the materials are buried when you arrive in the U.S.,” says the voice, speaking — via telephone — from the mountains of Pakistan. “I will be ready,” responds another voice, speaking from Islamabad.

This conversation is wholly hypothetical. But Democrats may want to imagine it as they ponder whether to follow the hyperbolic lead of California Sen. Barbara Boxer in attacking President Bush for ordering the National Security Agency to monitor, without warrants, certain communications to and from the U.S. involving people with suspected al Qaeda links.

Inspired by her radio appearance last month with former Nixon White House Counsel John Dean, Mrs. Boxer urges Senate Judiciary Chairman Arlen Specter, Pennsylvania Republican, to hold hearings on the president’s NSA program even before next week’s scheduled confirmation hearings for Judge Samuel Alito. “John Dean, who was White House counsel to President Nixon during Watergate,” Mrs. Boxer wrote Mr. Specter, “believes that this president has admitted to an ‘impeachable offense.’ ”

A little common sense might have curbed Mrs. Boxer’s enthusiasm for pursuing Mr. Dean’s theory.

President Bush, she might recall, ordered the NSA surveillance program in a specific historical and legal context.

Four years ago, al Qaeda terrorists hijacked jetliners from inside the U.S. and flew them into the World Trade Towers, the Pentagon and a field near Shanksville, Pa., killing thousands.

Three days later, the Senate voted 98 to 0 for war; the House, 420-1. The war resolution authorized the president “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.”

For once, American politicians united at the precise spot where an obvious fact collided with an equally obvious policy prescription: Foreign enemies infiltrated the U.S. to commit mass murder. We needed to go to war to prevent a repetition.

Now, the question for Mrs. Boxer ought to be: When, in prosecuting the war Congress authorized to prevent “future acts” of terrorism by al Qaeda, does the president need permission from a federal judge?

Presumably, even Mrs. Boxer would agree that when U.S. troops entered a cave in Afghanistan believed to be occupied by al Qaeda, they didn’t need a warrant. Presumably, she would also agree that when one terrorist in Afghanistan phoned another, our military did not need a court order to intercept the call.

I even suspect she might agree that the NSA could intercept a communication resembling the hypothetical conversation described at the beginning of this column.

But what if our hypothetical Islamabad caller flies to the U.S., lands at Washington Dulles International Airport, rents a car and, while heading toward the U.S. Capitol, pulls out a new cell phone and calls his old friend back in Pakistan? “I’m here,” he says.

Mrs. Boxer suggests President Bush may have committed an impeachable offense if he authorized the NSA to intercept communications similar to this one without permission from a judge. She must have forgotten we are in a war she voted for.

We don’t know the exact procedures of the NSA surveillance program. But a Dec. 19 press briefing by Attorney General Alberto Gonzales and Gen. Michael Hayden, principal deputy director of national intelligence, reveals its key points. Mr. Gonzales said: “We have to have a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.”

Second, only international communications are intercepted. “I can assure you,” said Gen. Hayden, “by the physics of the intercept, by how we actually conduct our activities, that one end of these communications are always outside the United States of America.”

Most important, we know the intercepts have allowed our government to gather wartime intelligence it could not have gathered were a court order required. Specifically asked if that were the case, Gen. Hayden said: “I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available.”

The last thing America needs is a partisan investigation of an ongoing war. But if Mrs. Boxer truly believes the congressional resolution authorizing war against al Qaeda did not authorize the president to monitor al Qaeda calls into and out of the U.S., she ought to sponsor a new resolution that does.

Terence P. Jeffrey is a nationally syndicated columnist.

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