Terrorist rights Democrats undercut good program

David Rivkin and Lee Casey:

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 The New York Times published a story describing the TSP. Although it was clear from the beginning that the program targeted al Qaeda--a particular communication was intercepted based on the presence of a suspected al Qaeda operative on at least one end--and not directed at ordinary Americans going about their daily routines, the administration's critics quickly wove the TSP into their favorite overarching anti-Bush narrative. They cited it as just one more example of a supposedly power-hungry president, the new "king George," chewing up our civil liberties.

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What has gotten lost in all of this increasingly sordid game of political gotcha is the viability of a critical program in the war on terror. The TSP was brought under the FISA court's jurisdiction this January, allegedly without impairing its effectiveness. But FISA orders are not permanent. They must be periodically reissued, and FISA judges rotate. As an editorial on the facing page of the Journal first reported Friday, well-placed sources say that today's FISA-compliant TSP is only about "one-third" as effective as the 2005 version--which, in turn, was less comprehensive than the original program. This is shocking during a summer of heightened threat warnings, and should be unacceptable to Congress and the American people.

The problem is particularly acute because FISA's 1978 framework has been rendered dysfunctional by the evolution of technology....

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Liberal paranoia is at the heart of the loss of this valuable asset in fighting the Islamic religious bigots who are trying to kill both liberals and conservatives. Liberals seemed to think that a process that inhibits information gathering in a time of war is a good thing because it makes them feel secure about their invalid concerns about the administration listening to their conversations. They are wiling to put all of us at risk for completely invalid concerns.

This is what is driving their bad faith attacks on the administration and the Attorney General. Their rejection of the constitutional principle of the inherent power of the President in a time of war to intercept enemy communications is a reflection of their political animus and paranoia against a President who has never been shown to have operated in bad faith. The modern Democrat party will go down in history as the most disloyal opposition party in history. Instead of a good faith debate on war policy they have descended into paranoia and name calling. They are putting their partisan paranoia ahead of the security of this country and they should be held accountable for that travesty.