December 23, 2005
Congress Should Give Bush Power To Tap Terrorists

By Mort Kondracke

By all means, Congress should hold hearings to determine whether President Bush had the authority to intercept communications involving terrorist suspects in the U.S.
And, if he didn’t have the authority, Congress should give it to him — forthwith.

Ideally, Congress should tear down whatever barriers prevent the government from getting court warrants to tap terrorists. But, if it can’t do that, it should authorize no-warrant intercepts, subject to eventual court review.

What newspapers and Bush critics are characterizing as “domestic spying” conjures up images of J. Edgar Hoover tapping the Rev. Martin Luther King Jr. to get blackmail material or Richard Nixon ordering taps on Vietnam war dissenters.
So far as is known in discussion since The New York Times revealed the Bush wiretap policy, “domestic” refers strictly to the American end of international calls between suspected Al Qaeda operatives.

These are not people exercising First Amendment rights to protest U.S. policy in the Mideast. Al Qaeda leaders have openly declared intent to use nuclear and biological weapons to kill as many Americans as they possibly can.

Bush and his defenders have repeatedly stated — legitimately — that he’s been criticized for failing to “connect the dots” on terrorist activity prior to Sept. 11, 2001, and that his ordering National Security Agency intercepts are his attempt to correct that error.

Senate Judiciary Committee chairman Arlen Specter (R-Pa.) has promised hearings on the program, and he should hold them, as should the House and Senate intelligence committees.

Because of the highly classified nature of the activity — including, it’s been hinted, some secret technological advances — the hearings must be closed.

But the committees should issue a report on whether they think Bush had authority to order the program and should recommend legislation, if necessary, to allow him to proceed.

Bush and his defenders claim that it’s too slow and cumbersome to obtain warrants from the Foreign Intelligence Surveillance Court when a terrorist target has been identified and an intercept needs to be established quickly.

Critics respond that the 1978 Foreign Intelligence Surveillance Act gives the government 72 hours of emergency authority to conduct intercepts, after which a court warrant must be obtained. It’s not clear why that isn’t adequate for what Bush wants to do.

Whatever roadblocks stand in the way of the administration’s getting authority to monitor terrorist suspects effectively, though, Congress should remove them.

The FISA court should be empowered to insure that no administration can misuse its authority to tap true domestic dissidents, but Congress probably should lower the standard to allow NSA intercepts when the government has “reason to believe” that terrorist planning is under way, rather than “probable cause.”

If a 72-hour emergency period is deemed inadequate, it ought to be extended. If paperwork is a problem, it should be streamlined.

There should never be another case like that of Al Qaeda operative Zacarias Moussaoui, whose laptop computer couldn’t be examined prior to Sept. 11 because the Justice Department did not think it could get FISA court permission.

Congress might also consider empowering the president, with expedited FISA approval, to tap communications conducted entirely within the U.S. If one terrorist in San Diego is plotting with another in Chicago, the government ought to be able to use electronic surveillance to stop them.

It would be far better for Congress to write laws allowing the president to do what needs to be done to protect the country than to let Bush exercise his “inherent” presidential powers, as he conceives of them.

The evidence suggests that there are next to no limits to what Bush thinks he can do as chief executive and commander in chief. By executive order, he sealed all presidential records from public view for 25 years and decided, after Sept. 11, that he could imprison, judge and condemn unlawful combatants without court review.

Early on, he also got legal opinions from his minions that exempted him from observing international law in the treatment of prisoners and the Justice Department declared that he has “plenary” power in the conduct of war — to the extent of initiating it without Congressional involvement.

Congress and the courts need to exercise legitimate authority to rein in an imperial presidency, but they also need to use good judgment in doing so.

It’s not good judgment when Members of Congress erupted over the disclosure of the identity of CIA operative Valarie Plame, but not over The Washington Post’s disclosure that the U.S. maintains secret detention facilities in Europe or The New York Times’ disclosure of the no-warrant intercept policy.

Attorney Gen. Alberto Gonzales said that one reason Bush didn’t seek Congressional authorization for domestic taps on terrorists is that he got word that Congress wouldn’t grant it.

Now that existence of the program is known — and it’s been established that the Clinton administration believed it had authority to conduct similar operations — Congress ought to act.

And if anyone in Congress stands in the way of a president’s ability to prevent a terrorist attack, they’re fair game the next time they run for reelection.

Mort Kondracke is the Executive Editor of Roll Call.

Mort Kondracke

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