The Power to Spy

IN A LETTER to leaders of the congressional intelligence committees last week, the Justice Department laid out its fullest legal justification yet for the National Security Agency's program of warrantless interceptions of international communications by Americans suspected of al Qaeda connections. The argument is not, as the administration's shriller critics contend, frivolous, but neither is it persuasive that the Bush administration has acted within the law. In fact, the administration has been needlessly aggressive in its interpretation. Because even the broad parameters of the program remain highly classified, it is impossible to know whether the underlying activity represents reasonable intelligence collection or tramples on the rights of innocent Americans. What is clear, however, is that circumventing both Congress and the judiciary -- as the administration has done -- was the wrong way to address whatever problem the intelligence agencies faced.

The administration's argument, as articulated by Assistant Attorney General William E. Moschella, goes like this: Under the Constitution, the president has the inherent power "to order warrantless foreign intelligence surveillance within the United States," as courts have recognized. That authority "is supplemented by statutory authority" under the congressional authorization to use force against al Qaeda, which authorized "all necessary and appropriate force" against the countries, groups and people that perpetrated the Sept. 11, 2001, attacks. This resolution, in turn, satisfies the Foreign Intelligence Surveillance Act (FISA), which requires warrants from a secret court for national security surveillance and bans any surveillance not authorized by statute; the administration contends the war resolution is such a statute. While the resolution does not explicitly authorize wiretapping of the enemy, the department argues, neither did it explicitly authorize detentions, yet the Supreme Court ruled that the resolution gave President Bush the power to hold even an American citizen. The authorization, Mr. Moschella wrote, should be construed broadly so as not to intrude on "the president's long-recognized authority."

It is true that administrations of both parties have long contended that the president has the inherent power to conduct warrantless national security searches and wiretaps. But saying the power is "inherent" is different from saying that it's exclusive and immune from congressional regulation. Indeed, presidents of both parties have complied with the terms of FISA and have not questioned its constitutionality. Mr. Bush is going a giant step further than his predecessors, asserting that his inherent authority doesn't merely entitle him to conduct such surveillance in the absence of a statute but to defy a statute once it has been passed.

Except that he does not concede that he is defying it, either. But the notion that the authorization to use force justifies the program is also troubling, and the analogy to detentions is not especially apt. Clearheaded members of Congress voting for the resolution certainly understood themselves to be authorizing the capture of al Qaeda and Taliban fighters. We doubt any members even dreamed they were changing domestic wiretapping rules -- particularly because they were focused on that very issue in passing the USA Patriot Act.

FISA explicitly contemplates the need for warrantless surveillance in wartime -- allowing it for 15 days after a declaration of war, of which the authorization is probably the legal equivalent. If this was not good enough, it was incumbent on the administration to explain why not and seek a legislative change. Mr. Moschella wrote that this was impossible because the goal was to create an early warning system and "any legislative change . . . would have been public and would have tipped off our enemies." But the right answer cannot be such a unilateral claim of power. If there was a problem with FISA -- and that's not yet known -- it was Congress's job to fix it and the administration's job to convince lawmakers of the need to do so.