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February 9, 2006 | By Nathaniel Ward
Wiretapping: A president's wartime obligation
Former CIA Director R. James Woolsey (left) and Heritage legal expert Todd Gaziano explain the legality of the NSA's Terrorist Surveillance Program.
For several months, liberals have been raising a ruckus about the National Security Agency’s interception of enemy communications from abroad. “Civil liberties are being abused,” they cry. “It’s an abuse of executive power,” they cry. This is simply not true.
It is understandable that some Americans would be ambivalent about the National Security Agency's Terrorist Surveillance Program (TSP) given the factual and legal misconceptions about the program in the press, Heritage legal expert Todd Gaziano said today in Heritage's Lehrman Auditorium. Gaziano clarified the limited scope of the TSP and the legal authorities that apply to military surveillance in wartime.
“The United States is at war,” Gaziano explained. “We would be at war even if Congress did not expressly authorize the use of all necessary force to defeat our enemies in 2001.” Our current war is particularly dangerous, to our soldiers and to all our families, he said, because some our terrorist enemies are living among us and potentially targeting each of us. That means the battlefield is here as well.
“During war, it is the President’s obligation to intercept every [enemy] communication that he can reasonably make use of” to defeat the al Qaeda terrorists we are at war with, he said, though normal warrant requirements still apply to domestic criminal investigations. The NSA’s targeted Terrorist Surveillance Program falls well within the military obligation of our commander-in-chief, which is established in Article II of the Constitution.
Gaziano, the director of Heritage’s Center for Legal and Judicial Studies, said President Bush “has shown remarkable restraint in implementing the TSP” by not intercepting every incoming foreign communication, as other wartime presidents have done.
The Congress granted the President latitude to conduct the TSP, which the President has inherent authority to undertake in any case, Gaziano said. “Congress instructed the President to use all necessary force, including military intelligence” in its Authorization for the Use of Military Force in September 2001, he explained. This authorization, he added, would override the Cold-War era Foreign Intelligence Surveillance Act with regard to enemies in a real shooting war, such as the one that the United States is now fighting.
Congress, which has been briefed on the TSP by the White House, has also continued funding for the National Security Agency. Gaziano called this an implicit endorsement of the program.
Former CIA Director R. James Woolsey concurred that the President has inherent authority to conduct the surveillance. “The President’s Article II powers under the Constitution are perfectly adequate to conduct this electronic mapping” of terrorist communications, he said. “I don’t think the President needs to wait for a statute to listen to Hezbollah.”
Woolsey added that the courts are “completely unsuited to make decisions about electronic war” given the volume of information and the fact that military intelligence gathering is not the same as a criminal investigation. Gaziano elaborated on this point, arguing that it would in fact be unconstitutional for the courts to rule on individual military intelligence operations, since the President alone holds commander-in-chief powers.
Both men also agreed that the individuals who leaked the existence of the TSP to The New York Times and other news outlets should be prosecuted to the full extent of the law. The leakers “have done a great disservice to the country and its defenders,” Woolsey said. “The government is not doing its job if it’s not investigating this vigorously.”
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