Ever since the New York Times over a year ago leaked its existence, Bush administration critics have portrayed the National Security Agency’s Terrorist Surveillance Program (TSP) as a key exemplar of the president’s alleged disregard for law. Their principal argument has been that, although al Qaeda’s electronic communications in and out of the United States should clearly be monitored, this should have been accomplished within the 1978 Foreign Intelligence Surveillance Act’s (FISA) framework and not based upon the president’s own claims of executive power. Indeed, the critics’ motto virtually became “if the judge has not passed on this, liberty is threatened.”
Fast forward to the present. On Jan. 10, the Justice Department disclosed that it had reached an agreement with the special court established under FISA, and that henceforth the Terrorist Surveillance Program would be administered under FISA. According to the responsible officials, the program’s scope and the operational parameters will remain unchanged. Given the process-centric arguments used by the president’s critics for well over a year, one would have thought that everybody would declare victory and the squabbles over NSA surveillance would have ceased. Unfortunately, the exact reverse has happened.
Indeed, attacks on the White House have escalated, with senior congressional Democrats muttering darkly about the administration’s suborning the FISA court and emphasizing that Congress needed to better understand what the nature of the surveillance program really was. Toward that end, last week the administration provided an unprecedented amount of information about the TSP applications (materials Senate Judiciary Committee Chairman Pat Leahy actually sought from the court itself) to the relevant committees and to a number of senior congressional leaders.
Whether all of this represents a damaging compromise of presidential power depends very much on how much the new FISA-based surveillance program truly is like the original program. If the administration has achieved a means by which al Qaeda’s communications can be monitored in a timely manner within the FISA statute’s requirements, then it has obtained a real benefit since information secured pursuant to a FISA order is generally admissible at later criminal trials, in both military and civilian courts. On the other hand, if the program has been curtailed so that the FISA process can be utilized simply as a means of avoiding a continuing battle with an emboldened Democratic Congress, the administration will have compromised both the president’s legitimate wartime powers and the national security.
What is clear, however, is that Congress must now put up or shut up. The Terrorist Surveillance Program has always made good sense — and the weight of legal authority (notwithstanding the poorly reasoned opinion of a federal judge in Detroit, who declared the program unconstitutional last August) supports the president’s decision to monitor al Qaeda’s communications with or without a warrant. If the program’s congressional critics really mean to say that any effort to monitor the international communications of known or suspected al Qaeda operatives and contacts is too much of an intrusion on our privacy rights, then they should say so. They also should explain why no compromise of those privacy interests (important as they are) is appropriate in wartime — even if under judicial supervision — and what alternatives there may be that also will vindicate the peoples’ equally important interests in life and security. If the administration’s opponents consider those interests to be less important, then they should say so openly and honestly, and let the American people decide.