The Real Wiretapping Scandal
Our Terrorist Surveillance Program isn't as effective it was a few months ago. Where's the outrage?
BY DAVID B. RIVKIN JR. AND LEE A. CASEY
Monday, July 30, 2007 12:01 a.m. EDT
Last Tuesday's Senate Judiciary Committee hearing--at which Attorney General Alberto Gonzales was insulted by senators and ridiculed by spectators--was Washington political theater at its lowest. But some significant information did manage to get through the senatorial venom directed at Mr. Gonzales. It now appears certain that the terrorist surveillance program (TSP) authorized by President Bush after 9/11 was even broader than the TSP that the New York Times first revealed in December 2005.
It is also clear that Mr. Gonzales, along with former White House Chief of Staff Andrew Card, tried to preserve that original program with the knowledge and approval of both Republican and Democratic members of key congressional committees. Unfortunately, they failed and the program was narrowed. Today, the continuing viability of even the slimmed-down TSP--an indispensable weapon in the war on terror--remains in serious doubt.
The administration's most immediate concern since 9/11 has understandably been whether al Qaeda sleeper agents, already inside the U.S., would carry out additional catastrophic strikes. To counter this real and continuing threat, President Bush authorized the National Security Agency (NSA) to intercept a full range of al Qaeda communications, presumably on a global basis.
The TSP was not implemented pursuant to the Foreign Intelligence Surveillance Act (FISA), which permits a special federal court to issue surveillance orders when Americans and others are targeted for intelligence gathering inside the U.S. Rather than utilizing FISA's cumbersome and restrictive procedures, the administration relied on the president's inherent constitutional authority as commander in chief to monitor enemy communications in wartime, as presidents have done since Lincoln's day.
In addition, the administration correctly relied on Congress's Sept. 18, 2001, authorization for the use of military force against al Qaeda. In 2004, the Supreme Court ruled that this statute authorized the president to employ all the "fundamental incident\[s\] of waging war." This, by any reasonable standard, would include secretly listening in on the enemy's phone calls, and reading their faxes, emails and text messages.
At least, that is what one would have thought. In December 2005, however, a firestorm of controversy erupted when anti President Bush, "The New York Times" published...
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