Revisiting the Principle of Security

by Robert J. Romano

December 18th, 2005

*Updated January 13th, 2006

In the midst of the heated political climate created by the illegal disclosure of a classified program in which international communications related to transnational terrorism were being intercepted by the National Security Agency without written warrants, a debate has been rekindled as to the proper balance between the peace and security of our society, and the privacy of individuals who are either complicit or connected to these terrorist networks, and whether their expectation to privacy is at all reasonable considering that they mean American citizens, our government, and our way of life great harm.  Also, Congress is now demanding new oversight to this program, and several critics have contended that the program is beyond the President's authority both under present law and the Federal Constitution.  The President has countered, in his weekly radio address, that his authorization of this program has addressed a problem which had existed previous to the war on terrorism, wherein "terrorists inside the United States were communicating with terrorists abroad before the September the 11th attacks, and the [9/11] commission criticized our nation's inability to uncover links between terrorists here at home and terrorists abroad. 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 other members of al Qaeda who were overseas. But we didn't know they were here, until it was too late... The authorization I gave the National Security Agency after September the 11th helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities. The activities I have authorized make it more likely that killers like these 9/11 hijackers will be identified and located in time. And the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad."

        Previously, here at The Federal Republican, this author has written on a very specifically enumerated principle of security, wherein privacy of an individual ought not be protected by the government if that individual either poses or possesses information about a clear and present danger to the peace and security of our society, whether it be through foreign arms and influence, or like dangers arising from domestic causes.  It is therefore unreasonable to expect the Federal government not to intercept communications between domestic terrorists or those connected to such individuals and international terrorists, their sponsors, and those connected to both in the same capacity as they would if those communications were based solely overseas.  Just because these activities were not conducted with written warrants issued by a court, per se, does not mean they were not based on probable cause nor that they were without warrant.  To use an analogy, if a police officer witnesses a crime being committed, it would not be necessary for that officer to run to a court to obtain a written warrant in order to make an arrest.  He would need to act quickly and decisively to capture the perpetrator based on probable cause.  Similarly, if the government can obtain intelligence to do with a potential attack, or those who have perpetrated or would commit attacks against the United States, it is reasonable to gather that information based on such a clear link.  According to the President, "Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks..." This is probable cause.  [But, even if it is not, for instance, let's assume that these sorts of intercepts led to an eventual request for a warrant for broad-based monitoring of the terrorist suspect. Clearly, with the resignation of Judge James Robertson from the Foreign Intelligence Surveillance Court, he was saying that this possibility is distinctly the reason for his resignation. And now terror suspects are trying to get any evidence which may have originated from the intercepts thrown out of court. But besides the intercepts, how else could the government know that the person was involved with the bad guys? How else would probable cause that the person was linked to the terrorists be established? Are the critics suggesting that the President must prevent future terrorist attacks on the United States, but that he is not supposed to use those technologies which make that possible? If warrants can only issue upon probable cause constitutionally, how is an intelligence agency supposed to establish that without using intelligence-gathering techniques? I think it would be appropriate, when probable cause is established, that a warrant could be obtained where necessary, but not beforehand.]*
        While all actions of the Federal government are subject to judicial review, they need not be reviewed before the fact.  They can, and in many cases, must be reviewed after the fact, and according to the President, this program is not without oversight and review: "The activities I authorized are reviewed approximately every 45 days. Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland. During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation's top legal officials, including the Attorney General and the Counsel to the President. I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups... The NSA's activities under this authorization are thoroughly reviewed by the Justice Department and NSA's top legal officials, including NSA's general counsel and inspector general. Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it. Intelligence officials involved in this activity also receive extensive training to ensure they perform their duties consistent with the letter and intent of the authorization." Also, according to The New York Times' report, "[T]he administration had briefed Congressional leaders about the program and notified the judge in charge of the Foreign Intelligence Surveillance Court, the secret Washington court that deals with national security issues."

        What is indeed troubling is not the execution of the President's authorization, but rather the disclosure of this program at all, which on its face violates the principle of security established here, and more importantly our own laws which prohibit the disclosure of classified information.  Under the principle, the truth should be known to all unless it poses a danger to peace and security, or violates privacy.  In this case, a danger has arisen to our national security, and according to the President, "Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country." In other words, this news was not fit for print.  It should have remained secret, and its disclosure ought to be investigated extensively by the Department of Justice, and those who illegally provided information about it prosecuted to the fullest extent of the law.  Though the writers of the story claimed to have sat on the story for a year, their delay does not in any way mitigate the harm which has been caused to our government's ability to carry out classified operations beyond the public's and our enemies' purview.

        We violate the principle of security and laws which are intended to protect classified information at our own peril.  It was and is not up to The New York Times to make a determination about which classified information ought to be public in this or any case.  The propriety of the President's authorization is an issue which must be dealt with now in the public sphere, and in the context of our political institutions, when it should have never been made public in the first place, and when it was a matter of security which must not be corrupted by politics.  Public officials, in considering the propriety of the program, should carefully weigh the necessity of security versus terrorists' and their ilk's expectation of privacy, and whether such expectation is reasonable from the government's standpoint.  If these matters must be brought to a court in order to ascertain whether there was probable cause, this must occur in the same secrecy that the program was intended to be carried out in.  Public officials who demand, or anybody who would require, that the constitutionality of a classified program be adjudicated in a public court are irresponsible.  The purpose of this program was to gather intelligence, and its functions must remain classified.  If these matters are to be brought to light in public congressional hearings to determine exactly what was happening in the program, and if I were a member of the program called to testify, I would either not show up or if subpoenaed refuse to testify.  Politicians undermine our security at all of our peril, and there can be no exceptions to the principle that security must not be corrupted by politics.  We must be very careful with how and where we tread here, and make certain that no more sensitive information about this program is disclosed.

        Under the September 18th congressional authorization for the use of force, the President "is authorized 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..." One vital aspect of waging war is gathering intelligence on potential targets, and that is precisely what this program was doing, and should continue doing.  The information being gathered by the National Security Agency under this program creates actionable intelligence which is being used in the war effort.  There is no reason its functions should have been disclosed to the public, when secrecy is precisely what intelligence gathering depends on.  Whether or not an attack is imminent, in our war effort against transnational terrorism, gathering intelligence on potential attacks, those who would perpetrate such attacks, and those individuals connected to both is an activity which must and will continue in spite of disclosures of those activities.  Protecting the lives of American citizens is our government's foremost responsibility, and without that protection, our liberty will quickly lose its security.