War imposes its tests on those who fight it. Battlefield tests are obvious and widely known, and can be deadly. Tests elsewhere, notably in the realm of law, are less obvious yet potentially as threatening to the survival of liberty and free institutions.
Contemplate the recent past: Abu Ghraib and Guantanamo; questions about torture, detainees and overseas jails; recurring debate about extending the Patriot Act. And now, "sigint" - signals intelligence, the monitoring of enemy telecommunications.
Regarding sigint, some, mostly the usual suspects, are going postal over administration monitoring of international calls involving al-Qaidists - seemingly without adequate congressional or judicial oversight. Privacy rights, we hear, are under challenge as never before. Defeating terrorism may be a noble goal, but not via tactics allowing an unchecked Big Brother to listen to our telephone conversations without our knowledge. One senator speaks of "the equilibrium of our constitutional system," of the dangers of embarking down the "slippery slope" of eavesdropping without warrants.
Some of the concerns are valid - always are, and always require the close attention of civil libertarians. All derive from an overriding fact and must be weighted by it: We are at war.
Consider these statements about sigint:
President Bush, in his State of the Union Address: "To prevent another (9/11-type) attack - based on authority given to me by the Constitution and by statute - I have authorized a terrorist surveillance program to aggressively pursue the international communications of suspected al-Qaida operatives and affiliates to and from America.
"Previous presidents have used the same constitutional authority I have - and federal courts have approved the use of that authority. Appropriate members of Congress have been kept informed. This terrorist surveillance program has helped prevent terrorist attacks. It remains essential to the security of America. If there are people inside our country who are talking with al-Qaida, we want to know about it."
Attorney General Alberto Gonzales: "After Sept. 11, Congress immediately confirmed the president's constitutional authority to 'use all necessary and appropriate force' against 'those nations, organizations or persons he determines' responsible for the attacks. The Authorization for Use of Military Force (AUMF) gave the president the latitude to use a full complement of tools and tactics against our enemy.
"A majority of Supreme Court Justices have concluded that the AUMF authorizes the president to use 'fundamental and accepted' incidents of military force in our armed conflict with al-Qaida. The use of signals intelligence - intercepting enemy communications - is a fundamental incident of waging war. . . . Efforts to identify the terrorists and their plans expeditiously while ensuring faithful adherence to the Constitution and our existing laws is precisely what America expects from the President. . . . The terrorist surveillance program protects both the security of the nation and the rights and liberties we cherish."
War requires extraordinary measures.
Abraham Lincoln suspended habeas corpus during the Civil War. Presidents Wilson and Roosevelt authorized the military to intercept not just some but all communications traffic into and out of the U.S. immediately following the outbreak of hostilities in World Wars I and II respectively.
Likewise, President Clinton initiated a surveillance operation - called Echelon - that could monitor any telephone conversation in the world, including in the U.S. Further, in 1994 Clinton Justice Department deputy Jamie Gorelick noted: "The Justice Department believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."
During the Clinton years, the public understood far less well, and with far less certainty, that jihadists were targeting the United States. Yet many of the same people criticizing the Bush administration now, from the ACLU to the Senate, were less vocal about their civil-libertarian concerns, perhaps because they were more simpatico with Clinton and invested him with more ideological trust. Again, these are many of the same people who - immediately following 9/11 - blasted Bush for not doing enough to thwart a terrorist attack, e.g., precisely the surveillance for which the administration now is being criticized.
Privacy is a proper and constant concern.
Yet we are in a war against terrorism, and in a New York Times/CBS News poll 53 percent of the public supports warrantless sigint to combat terrorist acts. Evidently, a majority of the adult population recognizes that the primary task of any administration is to defend the nation, even if certain privacy considerations have to be strained in the process.
Debra Burlingame comprehends the redressed equilibrium with uncommon insight; a former lawyer, she is the sister of Chic Burlingame, the pilot of American Airlines flight 77, flown into the Pentagon on 9/11:
"The public has listened to years of stinging revelations detailing how the government tied its own hands (and thereby failed to connect the dots and foil) the devastating attacks of Sept. 11. It is an irresponsible violation of the public trust for members of Congress to weaken the Patriot Act or jeopardize the NSA terrorist surveillance program because of the same illusory theories that cost us so dearly before, or worse, for rank partisan advantage.
"If they do, and our country sustains yet another catastrophic attack that these anti-terrorism tools could have prevented, the phrase 'connect the dots' will resonate again, but this time it will refer to the trail of innocent American blood which leads directly to the Senate floor."