Thwarting terrorists is top priority

December 26, 2005|By HERBERT LONDON

Partisanship of an extreme variety has reared its ugly head in Washington. Several lawmakers now object to President Bush's decision to engage in domestic spying in order to foil terrorist activity, which, it is claimed, exceeds his constitutional authority.

Keep in mind that this decision was made after 9/11 as a direct response to an attack on the United States and a belief borne out by intelligence reports that other terrorist activity might be forthcoming. In fact, Congress rallied behind the president. Even the normally cantankerous Democratic Rep. Nancy Pelosi of California admitted as much.

Now a fiery debate has emerged over the balance of power between the executive and judiciary branches of government. Several Democrats said they were deeply troubled by the surveillance program, contending that the president didn't have the authority to approve it.

"He has no legal basis for spying on Americans without court approval," said Sen. Richard J. Durbin of Illinois. Sen. Edward M. Kennedy of Massachusetts, in response to Vice President Dick Cheney's defense of the practice, argued, "I think the vice president ought to reread the Constitution."

Surely Senator Kennedy must know that the preamble to the Constitution says, "We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution of the United States of America."

The words "insure domestic tranquillity," "provide for the common defense" and "promote the general welfare" put some onus on the president to maintain these conditions. One may challenge presidential authority, but in wartime, there tends to be executive latitude somewhat circumscribed in tranquil periods.

After all, President Abraham Lincoln eliminated habeas corpus during the Civil War. President Franklin D. Roosevelt countenanced relocation camps for Japanese-Americans during World War II with the acquiescence of California Gov. Earl Warren and Supreme Court Justice Hugo Black, liberal icons.

In response to claims of surveillance abuses during the Nixon administration, the 1978 Foreign Intelligence Surveillance Act was passed. Under FISA, an 11-member court oversees government applications for secret surveillance or searches of those suspected of terrorism or espionage. Democratic leaders are now asking pointedly why the administration did not go to the FISA court for a warrant.

Attorney General Alberto R. Gonzales has a response. He cites the Authorization to Use Military Force law, which Congress passed a week after 9/11 and which allows the government to forgo FISA. It is alleged that Congress gave the president authority to use "signal intelligence" -- wiretaps, for example -- to eavesdrop on international calls between U.S. citizens and foreigners when either of the parties is a suspected al-Qaida member or supporter.

Mr. Bush contends that the surveillance actions taken by the government are consistent with his constitutional powers and have prevented attacks in the last four years. Evidence seems to support this contention.

According to the FBI and statistics provided by the Justice Department, there have been more than 100 instances of planned terrorist activities within the United States that have been thwarted by domestic surveillance. These include an attempt to blow up the Brooklyn Bridge, the Mall of America and the Holland Tunnel.

It would appear that the fervor generated by 9/11 is starting to wane. More significantly, it would appear that partisan politics have been insinuated into even sensitive security provisions. There is, however, one matter that should not be overlooked: Osama bin Laden and his band of al-Qaida fanatics have vowed to kill Americans and destroy our institutions. That reality must not be forgotten.

Ultimately, the Supreme Court may be obliged to adjudicate the issue of presidential authority, but the president did what was necessary to secure national security. One may to decide to examine pettifogging legal matters, bu for most Americans, keeping the enemy at bay is what should be the focus of presidential attention.

Herbert London, president of the Hudson Institute, is the author of "Decade of Denial: A Snapshot of America in the 1990s." His e-mail is

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