Do the ends justify the means?
Apparently, the folks who leaked classified info on the National Security Agency's warrantless surveillance program thought so. They broke the law to blow the whistle on what they deemed a threat to civil liberties.
Apparently, The New York Times thought so. The paper that howled about the alleged outing of a CIA operative had its reasons for exposing a classified program that has stopped terror attacks. It thought the program violated the law and Constitution, it wanted to affect the Patriot Act debate, it had a reporter with a book coming out soon -- who knows?
President Bush certainly thought the ends justified the means in authorizing the NSA program, and it's easy to see why and why he calls its disclosure "shameful." Not only do the ends justify the means, but the means are eminently justifiable.
The end is that we are at war. Some might not want to acknowledge this, but Bush has been consistent. That we are at war has been his presidency's organizing principle, and he's said he'll do everything in his power to stop another 9/11 in this war.
Bush says the NSA operation has prevented attacks in America and this wouldn't have happened save for the means of this program. But does a president have the legal power to intercept communications between people here and al-Qaida operatives overseas without a warrant? Is warrantless eavesdropping involving U.S. citizens on one end of the international chat an abuse of presidential power?
Whatever you may think of the NSA's limited warrantless surveillance, it's hardly beyond the pale historically, legally or constitutionally, particularly in wartime. Never mind the authority that Bush believes Congress gave him to fight al-Qaida in the September 2001 Authorization for Use of Military Force Act. He believes he has "inherent authority" under the Constitution, as commander in chief, to conduct specific kinds of warrantless surveillance. And this "inherent authority" isn't something Bush cooked up.
"The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."
That's from President Clinton's deputy attorney general's testimony before the Senate Intelligence Committee. National Review's Byron York unearthed this Jamie Gorelick quotation from a 1994 hearing on the president's "inherent authority" to order physical searches of homes of U.S. citizens without a warrant.
I know, Democrats can get away with this kind of thing, but Congress and the courts have also acknowledged any president's "inherent powers." Until Congress changed it in 1988, the U.S. Criminal code stated, "Nothing contained in this chapter . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect . . . against actual or potential attack or other hostile acts of a foreign power . . ."
In Sealed Case No. 02-001, the Foreign Intelligence Surveillance Court of Review said in 2002: "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."
If warrantless surveillance is so beyond the pale of presidential authority, why does FISA itself allow warrantless surveillance "during times of war"?
Are we at war? Again, Bush thinks so. Congress authorized the president to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with al-Qaida, and the Supreme Court treated this as a declaration of war in the Hamdi case. Finally, events since suggest this didn't end with the Taliban's fall in Afghanistan. Beyond post-9/11 attacks in Bali, Madrid, London and elsewhere, authorities have recently busted up terror plots in Paris, Denmark, Italy and Australia.
And, add to all this a plan for another New York attack. The NSA's warrantless intercept program helped nab an Ohio man who was trying to blow up the Brooklyn Bridge in 2003.
A critical end. A constitutional means.
David Reinhard
