- The Washington Times - Saturday, March 18, 2006

Many critics of President Bush’s program authorizing the National Security Agency (NSA) to conduct surveillance on international communications of suspected terrorists, without warrants, do the nation a great disservice by avoiding the critical issues. Critics often exaggerate the program’s scope, ignore its physical limits, distort the possible need for it, and avoid the central constitutional issues arising from congressional acts to limit the powers of the president.

Some critics, as in the case of Bruce Fein’s Feb. 14 article in The Washington Times, claim the program targets the people of the United States. They have it backward. The program targets those suspected of planning terrorist attacks against the people of the United States.

From sheer physical requirements, the scope of the program is very small. According to published reports from the Federal Communications Commission and the cellular telephone industry, there are more than 320 million land lines and cellular subscribers in the U.S. To fully monitor these would require the entire population of China — 1.3 billion people.

Further, if some of the communications are conducted in the languages of the Mideast, such as Arabic, Urdu, Farsi and Pashto, the percentage that can be monitored is minuscule because we have precious few translators.

Critics claim the Foreign Intelligence Surveillance Act (FISA) is proscriptive: It provides the procedures the Office of the President must follow in gathering foreign intelligence and that the Office has no other legal powers to gather intelligence.

Yet every administration since the passage of FISA, including the Carter and Clinton administrations, claimed the president has other powers. Thus far, the courts seem to agree.

FISA provides a means by which the Office of the President can obtain secret warrants to conduct surveillance. However, warrants require probable cause and, no matter how expedited, require time. Suspicion of terrorist activity is not probable cause, particularly if the only lead is a telephone number. Delay can be deadly. Thus, programs beyond FISA are necessary to provide timely intelligence.

Unlike what many critics imply, the constitutional issues are far from settled. The Constitution states: “The executive Power shall be vested in a President of the United States… ” and “The President shall be Commander in Chief of the Army and Navy.” The president is responsible and accountable to the American people for defending the nation against foreign attack. The constitutional question often avoided is: Does the president have inherent powers that Congress cannot abridge? There is no clear, bright answer in the Constitution.

On this question, there is disagreement even from libertarian constitutional scholars who have long claimed the federal government has greatly exceeded its constitutional powers. Writing in the Wall Street Journal Feb. 13, University of Chicago Professor Richard Epstein declares the NSA surveillance program is illegal because it exceeds the presidential authority as defined under FISA. In rebuttal, Roger Pilon of the libertarian Cato Institute asserted Feb. 21 that the Office of the President has inherent powers that Congress cannot abridge.

Many of our Founding Fathers, especially George Washington, recognized the critical need for intelligence and secrecy. Thus, I find it implausible that the Founders gave the president responsibility and accountability to protect the nation against foreign attack yet denied the president the authority (inherent powers) to secretly gather intelligence unless specifically approved by Congress or the judiciary. The Founding Fathers understood that to be held responsible and accountable, one must have requisite authority.

There is legitimate concern that the program may be abused. FBI Director J. Edgar Hoover, the Kennedy, Johnson, Nixon and Clinton administrations all abused intelligence gathering by directing it against their political opponents. Thus far, there are no credible assertions that Mr. Bush has done so.

Yet, whatever applies to the Office of the President applies to whoever holds the Office. Thus, safeguards against abuse are vital. That said, denying the Office the ability to conduct international surveillance without warrants goes far beyond establishing adequate safeguards.

Those who insist in limiting, or denying, the Office of the President the power to authorize this program should be asked: If you are successful, and if there is another terrorist attack in which timely intelligence is lacking, would you be willing to stand before the American people and declare “I am responsible for curtailing intelligence gathering, therefore I am accountable”? Few, I think, would be willing to do so.

KENNETH A. HAAPALA

Fairfax, Va.

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