Terry Jeffrey

"We will tell you where the materials are buried when you arrive in the U.S.," says the voice, speaking -- via telephone -- from the mountains of Pakistan.

 "I will be ready," responds another voice, speaking from Islamabad.

 Mind you, this is a wholly hypothetical conversation. But Democrats may want to imagine it now as they ponder whether to follow the hyperbolic lead of Sen. Barbara Boxer of California in attacking President Bush for ordering the National Security Agency to monitor, without warrants, certain communications to and from the U.S. involving people with suspected links to al Qaeda.

 Inspired by a radio appearance she made last month with former Nixon White House Counsel John Dean, Boxer is urging Senate Judiciary Chairman Arlen Specter, the Pennsylvania Republican, to hold hearings on the president's NSA program even before next week's scheduled confirmation hearings for Judge Samuel Alito. "John Dean, who was White House counsel to President Nixon during Watergate," Boxer wrote Specter, "believes that this president has admitted to an 'impeachable offense.'"

 A little common sense might have curbed Boxer's enthusiasm for pursuing Dean's theory.

 President Bush, she might recall, ordered the NSA surveillance program in a specific historical and legal context.

 Four years ago, al Qaeda terrorists hijacked jetliners from inside the U.S. and flew them into the World Trade Towers, the Pentagon and a field near Shanksville, Pa., killing thousands.

 Three days later, the Senate voted 98 to 0 for war; the House, 420-1. The war resolution authorized the president "to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

 For once, American politicians united at the precise spot where an obvious fact collided with an equally obvious policy prescription: Foreign enemies had infiltrated the U.S. to commit mass murder. We needed to go to war to stop them from doing it again.

 Now, the question for Sen. Boxer ought to be: When, in prosecuting the war Congress authorized to prevent "future acts" of terrorism by al Qaeda, does the president need permission from a federal judge?

 Presumably, even Sen. Boxer would agree that when U.S. troops entered a cave in Afghanistan believed to be occupied by al Qaeda, they didn't need a warrant.

 Presumably, she would also agree that when one terrorist in Afghanistan phoned another, our military did not need a court order to intercept the call.

 I even suspect she might agree that the National Security Agency could intercept a communication resembling the hypothetical conversation described at the beginning of this column.

 But what if our hypothetical caller in Islamabad makes his way to the U.S., lands at Dulles Airport in suburban Virginia, rents a car and, while heading down the road toward the U.S. Capitol, pulls out a new cell phone and calls his old friend back in Pakistan?

 "I'm here," he says.

 What Sen. Boxer is suggesting is that President Bush may have committed an impeachable offense if he authorized the NSA to intercept communications similar to this one unless he had permission from a judge. She must have forgotten we are in a war she voted for.

 We don't know the exact procedures of the NSA surveillance program. But thanks to a Dec. 19 press briefing by Attorney General Alberto Gonzales and Gen. Michael Hayden, principal deputy director of national intelligence, we do know its key points. First, Gonzales said, "we have to have a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda."

 Secondly, only international communications are intercepted. "I can assure you," said Gen. Hayden, "by the physics of the intercept, by how we actually conduct our activities, that one end of these communications are always outside the United States of America."

 Most importantly, we know the intercepts have allowed our government to gather wartime intelligence it could not have gathered if a court order were required. When specifically asked if that were the case, Gen. Hayden said: "I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available."

 The last thing America needs is a partisan investigation of an ongoing war. But if Sen. Boxer truly believes the congressional resolution authorizing war against al Qaeda did not authorize the president to monitor al Qaeda's calls coming into and out of the United States, she ought to sponsor a new resolution that does.


Terry Jeffrey

Terence P. Jeffrey is the editor-in-chief of CNSNews

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