Al-Qaida exists. It has explicitly vowed to kill Americans, including
civilians, whenever and wherever possible. Congress, for all legal intents
and purposes, declared war against al-Qaida with its use of force
resolution following the 9/11 attacks.
From this reality flow certain conclusions regarding surveillance,
detention and interrogation.
In a war, you spy on the other side. However, in a war the Constitution is
not suspended, which requires a court order to snoop in the United States.
In 1978, Congress established a special court through the Foreign
Intelligence Surveillance Act to provide such orders while preserving the
secrecy necessary in foreign-intelligence operations.
The appropriate demarcation would seem obvious. The president has the
power, as commander-in-chief, to approve intelligence operations regarding
al-Qaida outside the country. Inside the country, they require the approval
of the FISA court.
The Senate Intelligence Committee has passed a FISA reform that makes this
sensible demarcation. Many Democrats, however, are kicking. They want court
approval if the foreign target located outside the United States has a
communication with someone within the United States.
This is needlessly restrictive and not constitutionally required unless
what is learned by targeting the foreign source causes an interest in a
domestic figure. The communications of innocents are a necessary byproduct
of any surveillance. The prospect shouldn't be used to curtail the
president's authority to spy on al-Qaida.
Part of the effort to protect the country against terrorist attacks is to
capture and detain those who are part of the apparatuses that commit them.
Democrats, however, want Guantanamo shut down and detainees subject to the
American legal system.
Some of the people we will want to detain will have committed provable
criminal acts and the U.S. criminal justice system may be a useful tool for
dealing with them. And under the Constitution, U.S. citizens have to be so
treated. However, access to the American legal system shouldn't be required
for foreign captives. This is a war, not a sting operation.
Some foreign captives we will want simply to detain. There should be some
sort of administrative review process, which the Bush administration was
slow to set up. However, the elements of review should be whether they are
part of al-Qaida's apparatuses and it is in U.S. security interests to
detain them â€" not whether they have committed some specific, provable
criminal act.
If we are detaining some foreign captives, they need to be housed
somewhere. Contrary to popular misconception, Guantanamo isn't some dungeon
from which there is no escape. There are approximately 320 detainees
currently at Guantanamo. Since 2002, over 450 detainees have been released
from it.
Some detainees will have information about current operations that pose an
imminent risk to Americans. Reportedly, the CIA sometimes uses coercive
interrogation techniques — sleep deprivation, stress positions and
waterboarding (simulated drowning) — in an attempt to disgorge the
information.
According to CIA director Michael Hayden, fewer than 100 of what he calls
“hardened terrorists” have been put through the CIA interrogation program
and less than a third of them have been subjected to what he alludes to
anodynely as "special methods of questioning." Public accounts indicate
that waterboarding has been used on just three detainees.
Yet, according to Hayden, about 70 percent of what is know about al-Qaida's
operations and capabilities comes from the CIA interrogation program.
Former CIA Director George Tenet credits it with most of the intelligence
that permitted the prevention of planned attacks.
This is a morally uncomfortable activity for a democracy and safeguards
need to be in place to restrain its overuse. But do Democrats really want
to forbid its use to obtain information about imminent threats?
The Bush administration is largely to blame for the sorry state of the
public discussion about the powers of the federal government regarding
terrorism. It has asserted an unlimited and unreviewable power to snoop and
detain wherever and whenever it deems appropriate. That's contrary to the
Constitution and the American ethos of checks and balances.
The Democrats, however, would serve the country better by not overreacting
to the Bush administration's overreaching.
Bush tries to sweep everything into the "war on terror," and the phrase is
not a useful construct for the conduct of U.S. foreign policy.
However, al-Qaida's war against the United States and its citizens is very
real. And some of the instrumentalities of war need to be used to defend
ourselves.
