Leaks to the news media have raised public awareness over government electronic surveillance, purportedly in connection with national security concerns, of persons inside the United States engaged in international communications. Consequently, all three branches of the government are grappling with how to move forward in a manner that defends the nation's security, yet preserves the Constitutional way of life and rule of law, which defines the American identity and makes possible U.S. prosperity and superpower status.

Judge Anna Diggs Taylor of the U.S. District Court for the Eastern District of Michigan in Detroit on Aug. 17, 2006, ruled against the National Security Agency’s (NSA) Terrorist Surveillance Program (TSP) that involves the warrantless intercepting of international communications involving persons inside the United States where one party is believed to be connected with, or supportive of, al-Qaeda.  [Click here to read the court’s 44-page memorandum opinion as a PDF.]  Separate claims relating to data mining were dismissed based upon invocation of the state secrets privilege, not the merits of the claims.  Based on public admissions by the U.S. government, the court concluded that it was “undisputed” that:

• TSP exists
• TSP operates without warrants
• TSP targets communications where one party is outside the United States
• according to the government, TSP comes into play when there is a reasonable basis to conclude that one party to a  communication is:
• a member of al-Qaeda,
• affiliated with al-Qaeda,
• a member of an organization affiliated with al-Qaeda or
• working in support of al-Qaeda.

A Solomonic solution would be to hold that (1) Congress, in the course of authorizing military operations with its post-Sept. 11 Authorization for Use of Military Force (AUMF), authorized signals intelligence by implication, since signals intelligence is incidental to military operations and also could be argued to be a  part of what the AUMF termed “all necessary and appropriate force”; that (2) this authorization covers a global conflict that includes U.S. territory but that (3) given the special relationship between the U.S. government and U.S. territory, and special Constitutional concerns over this type of governmental activity, for Congress to authorize eavesdropping within the United States by implication is simply too vague and ill-defined to past Constitutional muster.  Thus, the matter should be “thrown back” to Congress.

Whether on Iraq, anti-terrorist surveillance, military commissions, or other national security issues, U.S. citizens have a right to expect teamwork and leadership from diverse voices, among all parts of government. This is consistent with a defining principle that in a democracy one does not check one's own work, but submits it to independent oversight.

Efforts to address the matter, such as through Senate bill S.2453, introduced by Senate Judiciary Committee Chairman, Senator Arlen Specter, R.-Penn., eventually with apparent comity from the White House, represents forward progress but only goes “part-way.”  In the case of S.2453, for example, Congress does little to provide guideposts, instead apparently looking to (1) leave the matter of designing the frameworks in the hands of the administration, (2) subject to frequent review by a civilian court, the Foreign Intelligence Surveillance Act (FISA) Court, of each program as opposed to each warrant, (3) accompanied by ad hoc review by key Congressional committees.  Note that because the FISA court review is of a program rather than a particular warrant, warrantless searches are implied, while nevertheless providing the greater agility the administration has argued it needs. 

Some aspects of these ideas could represent important steps forward in the debate, but only if they are the beginning of forward movement that goes yet further.

At this point, to reiterate and expand, the most appropriate assessment of the legal and philosophical landscape could be the following: 

(1)  First, Congress’s Authorization for Use of Military Force (AUMF) authorized military operations, and signals intelligence is incidental to military operations.  When the U.S. military claimed to hear Osama bin Laden on a walkie-talkie at Tora Bora no one complained about the absence of a search warrant.  The AUMF, by implication, authorized signals intelligence, just as it authorized the taking of detainees, as recognized by the U.S. Supreme Court plurality in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). 

(2)  But the next questions are “where is the battlefield?” and “what if any rules apply?”

In the global conflict against al-Qaeda, U.S. territory is clearly part of the battlefield,                                       despite any desire by politicians and citizens to “have their cake and eat it too” by trying to simultaneously be at war and be at peace, not making the wholesale effort exemplified, for example, by World War II (perhaps demonstrated most painfully by the decision to go to war in Iraq with a less than whole-hearted logistical effort, denying troops adequate vehicle armor in part because of an unwillingness to expand relevant industrial capacity back “at home”).

But, while admitting that in the global war on terror U.S. territory undeniably is part of the battlefield, at the same time, with respect to U.S. government activity, U.S. territory also is special, because at home the U.S. government does not simply defend U.S. territory, it governs U.S. territory, subject to the U.S. Constitution. 

And Fourth Amendment search and seizure issues are a carefully balanced area of law in which, rather than there being dramatic Constitutional confrontations between Congress and the executive branch over war powers, there is a long track record of checks and balances between the judiciary and the other two branches over, for example, the conduct of local police. 

This jurisprudential history is especially salient given that - war rhetoric aside - the diffuse, individualized, free-lance nature of terrorist activity, the commingling of terrorists with civilian populations and their, generally speaking, lack of affiliation with a sovereign government mean that counterterrorist operations - by necessity - in the end are counter-criminal operations requiring individualized efforts to identify, locate and root out each last individual terrorist. The same reasons that make intelligence one of the most important aspects of counterterrorist operations also highlight the counter-criminal nature of the endeavor.

Thoughtful reflection on the context of the war on terror must take into account several bedrock principles.  First, the war on terror is fundamentally a war between rule of law and lawlessness, essential to which is the concept that there is such a thing as right and wrong that in turn requires checks upon personal behavior.  The absence of this principle in their belief system belies attempts by terrorists to pretend to be religious in their motivation.  Second, there is the principle of sovereignty and its root purpose to curtail the incidence of violence in the world, to provide peaceful stability for the advance and well-being of all peoples. 

The idea behind sovereign nation-states was to pool power in the hands of a lawful authority in order to take it out of the hands of individual criminals and local warlords.  The more modern development of democratic checks and balances upon sovereigns ideally further curtails the exertion of power, including violent force.  International law, in turn, aspires to place constraints on the incidence of violence between nation-states to further work towards a global reduction in violence.

Terrorism is not necessarily all that new.  It is in many respects a throw-back to the renegades and local warlords of the past.  The Marine Corps hymn verse “to the shores of Tripoli” serves as a reminder that even centuries ago a young United States was made to look beyond its shores and assert global military force because of renegades and local warlords who had little use for law and order (in that case the pirate barbarians of 18th century north Africa). 

As in Lebanon, one also is reminded that efforts to democratize may require first an effort to “sell” some regions and local cultures on the even more basic concept of sovereignty.  At the same time, of course, the United States must be certain to build upon its own traditions of rule of law and democratic synergy to optimize its own conduct in response to the lawlessness of terrorism.

When dealing with terrorists, who are criminals prosecutable in civilian courts, while also being a combination of freelance, nationally unaffiliated spies and saboteurs, renegades, and would-be old-time warlords, it may also be prudent to ask whether the military or its affiliates always need to be the lead agencies.  As with the operation of prisons, adjudications, law enforcement activities and interrogations, signals intelligence has long been incidental to military activity, but not the reason or core mission for which the military was founded.  Given the urgency of individualized information-gathering in the counter-criminal aspect of counterterrorist operations, one may need to ask whether military or quasi-military turf-building is the “way to go” in this area and also whether the military and military-related budget apparatus will permit the appropriate level of intelligence-related expenditure needed to accomplish requisite information-gathering that acts in a proactive matter to ferret out plots before they come to fruition. In some cases, information-gathering may even be called upon to find “needles in haystacks.”

And even with respect to operational tactics, by way of comparison, when a “garden variety” criminal such as a rapist or robber “holes up” in a residential neighborhood it is necessary for police to engage in individualized information-gathering and tactical action to identify, locate and remove the threat, without calling in a bombing of the entire neighborhood.  To be sure, terrorists are often better armed, but security does require they be investigated, identified, located and removed. 

On Sept. 11, 2001, without adequate information the U.S. military was helpless to stop the attacks, other than being prepared to shoot down U.S. civilian airliners.  With adequate information the U.S. military would have been unnecessary.  A small number of local sheriff’s deputies or airport security would have been sufficient to stop a handful of lunatics with box-cutters.

Beyond the scope of this writing is the proper role of civilian prosecutions versus military commissions and related concerns over security.  But the counter-criminal aspect of counterterrorism operations is undeniable and, in the context of surveillance, the civilian FISA court’s apparent perfect track record for not having leaks, publicly acknowledged within Congress and arguably remarkable in Washington, D.C., is worth noting.

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