War, Law and Justice; Set the NSA Case Right

Article excerpt

Byline: David B. Rivkin Jr. and Lee A. Casey, SPECIAL TO THE WASHINGTON TIMES

Judge Anna Diggs Taylor's recent opinion striking down the National Security Agency's terrorist surveillance program is neither an accurate statement of what the law is nor of what it should be. To her credit, Judge Taylor made no secret of how she approached this case.

Early in her opinion she refers to "the War on Terror of this administration." In other words, this is not her war and it's not America's war, it's George W. Bush's war, and the judge was clearly determined to hold at least one aspect of that war the NSA surveillance program unconstitutional. She did so based on a deeply flawed rationale.

Most critics have challenged the program's legality on statutory, rather than constitutional, grounds. The Foreign Intelligence Surveillance Act (FISA) generally requires a special judicial order before the government can intercept electronic communications for foreign intelligence purposes, except as otherwise "authorized by statute." The Bush administration argues that the NSA program was authorized by statute in the form of Congress' Sept. 18, 2001, Authorization for the Use of Military Force (AUMF).

That law authorized the president "to use all necessary and appropriate force" against those responsible for the September 11 attacks, and the Supreme Court has already interpreted the AUMF, in its 2004 Hamdi v. Rumsfeld ruling, to provide statutory permission for all of the "fundamental incident[s] of waging war." This case was not affected by the court's more recent war on terror decision in Hamdan v. Rumsfeld, where it concluded based on a different statutory text that was not impacted by the AUMF that military commission rules must be consistent with those applied in regular courts-martial.

Obviously, many believe that electronic surveillance in the United States is just too far removed from the "fundamental incidents of war" to have been justified, without more specific language, by the AUMF. Judge Taylor, however, fails to confront or answer the administration'sactual Hamdi/AUMF argument. Instead, she concluded that the NSA program would be unconstitutional even if authorized by Congress in the AUMF. She based this extraordinary ruling on a misconstruction of both the Fourth and First Amendments.

The Fourth Amendment prohibits "unreasonable searches and seizures," and requires that search warrants be issued only on a probable cause showing. The Supreme Court has ruled that most warrantless searches are unreasonable, except in cases of "special needs." Special needs cases include instances where individuals are leaving or entering the United States, and are very similar to the international or trans-boundary communications subject to the NSA program. Judge Taylor does not reconcile this important exception to the general rule with her sweeping claims that prior warrants are required "for any reasonable search. …