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Presidents and spies
Published December 20, 2005


    Should the National Security Agency secretly eavesdrop on the telephone conversations of suspicious persons in the United States calling al Qaeda operatives overseas? We might be more shocked if the Bush administration hadn't authorized such surveillance, provided it was done within the law. NSA's substantial resources, like those of the CIA and the military, should be properly and legally harnessed to fight the al Qaeda threat wherever it appears.

    Questions have been raised whether President Bush can do this without violating the law. He thinks he can: The Foreign Intelligence Surveillance Act allows it, with congressional oversight and checks on executive authority, as well as presidential war powers. The guardians of civil liberties who object may be mistaking precedent -- that the NSA didn't engage in domestic spying activities until late 2001 or early 2002 -- for a nonexistent law saying that it can't.

    Mr. Bush answered questions yesterday with unusual passion: that terrorists and their collaborators are agents of a foreign power on whom the government should be allowed to spy because such spying protects and preserves American lives. He had said in his Saturday radio address: "Two of the terrorist hijackers who flew a jet into the Pentagon, Nawaf al Hamzi and Khalid al Mihdhar, communicated while they were in the United States to al Qaeda who were overseas. But we didn't know they were here until it was too late." Listening to their conversations -- both were aliens, one here illegally, one legally -- could have prevented tragedy.

    The voices of outrage misread the Foreign Intelligence Surveillance Act. Title 50 of the U.S. Code, Chapter 36, Subchapter I, Section 1802, "Electronic surveillance authorization without court order," reads: "[T]he President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year," provided a series of conditions are met. Surveillance must be directed only at agents of foreign powers; there can be no likely surveillance of a "U.S. person" (more on this term below); and there must be strict congressional oversight in the intelligence committees. Mr. Bush says he has complied with these laws.

    The critics ignore the Joint Authorization for Use of Military Force, enacted by Congress shortly after September 11, which can be viewed as a congressional declaration of war on the terrorists and a stamp of approval for the president's wartime actions.

    And if the NSA ends up spying on a U.S. citizen? The "U.S. person" definition "does not include a corporation or an association which is a foreign power," according to the same law. An "agent of a foreign power" is anyone, citizen or otherwise, who "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power." Which means that people who do not help al Qaeda or other terrorists are safe from surveillance. Anyone who does, however, forfeits his rights and can be targeted for eavesdropping.

    There is little novel about the domestic-spying revelations, only that Mr. Bush has chosen to break precedent by harnessing the NSA's substantial resources. Any government intrusion into private lives should make us all uneasy, but given the givens, given NSA's capabilities and above all the fearsome magnitude of the threat, we think the president's arguments persuasive.

    Mr. Bush has not flinched from the criticism, and we applaud him for that. Congress could clear the confusion with an unmistakeable formal declaration of war on radical Islamist terrorism. Congressmen who sit on the intelligence committee could detail just how much they know and how long they've known it; it seems clear that several of the critics had prior knowledge of the program. In an era of airport searches and bomb-sniffing dogs, should a suspicious telephone call to Iran or Algeria be exempt from the war on terror?