I don't find the secret intelligence gathering program very bothersome. We are at war, even though too many pretend we are not.
According to Attorney General Gonzales, the President has authorized a program that makes electronic intercepts of contents of communications only where one party to the communication is outside the United States. The Attorney General also said the program is limited to situations where there is a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.
Attorney General Gonzales explains that the legal authority to conduct this surveillance is the "Authorization for Use of Military Force", which was passed by the Congress in the days following the September 11, 2001 terrorist attacks. That joint resolution provides:
That 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.
That is an extremely broad authorization. The Attorney General recognizes that and so has the Supreme Court in Hamdi v. Rumsfeld, 542 U.S. 507.
In that case, Mr. Hamdi, a U.S. citizen, was contesting his detention by the government. Hamdi argued there is a statute that specifically prohibits the detention of American citizens without permission -- 18 USC 4001a, which provides that the United States government cannot detain an American citizen except by an act of Congress.
The government took the position that Congress had authorized that detention in the authorization to use force, even though the authorization to use force never mentions the word "detention." The Supreme Court, in a plurality decision written by Justice O'Connor said, it was clear and unmistakable that the Congress had authorized the detention of an American citizen captured on the battlefield as an enemy combatant for the remainder -- the duration of the hostilities. The Supreme Court decided that detention of enemy soldiers captured on the battlefield was a fundamental incident of waging war, and therefore, had been authorized by Congress when they used the words, "authorize the President to use all necessary and appropriate force."
Attorney General Gonzales opines that signals intelligence is even more a fundamental incident of war, and electronic intercepts were authorized by the Congress, even though signals intelligence is not mentioned in the authorization to use force.
The Attorney General also asserts the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this activity:
Signals intelligence has been a fundamental aspect of waging war since the Civil War, where we intercepted telegraphs, obviously, during the world wars, as we intercepted telegrams in and out of the United States. Signals intelligence is very important for the United States government to know what the enemy is doing, to know what the enemy is about to do. It is a fundamental incident of war, as Justice O'Connor talked about in the Hamdi decision.
At the Volokh Conspiracy, Orin Kerr disagrees. Orin posts that the Attorney General is reading the Authorization for Use of Military Force too broadly. Orin doesn't think wiretapping counts as a "use of force." Orin does admit the Hamdi case provide colorable arguments that Authorization for Use of Military Force might support this program.
Clever lawyers can build a number of compelling arguments going the disagreeing with the Attorney General. . These lawyers' arguments don't have the weight of an opinion of the Attorney General of the United States. The Attorney General's opinion will stand as legal justification for the intercept program until a court tells the Attorney General he is wrong.
If Congress believes the Authorization for Use of Military Force is being read too broadly, Congress can pass legislation to correct it. Congress has been consulted about this program a dozen times. If Congress thought the program went beyond Authorization for Use of Military Force, Congress had an obligation to take action.
The secret electronic intercepts of contents of communications where there is a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda, and where one party to the communication is outside the United States, doesn't bother me.
What does bother me is the disclosure of the classified program by government employees.
Federal law, 18 U.S.C. § 798. Disclosure of classified information, prohibits the disclosure of certain categories of information, specifically including classified information regarding communications intelligence:
(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information-
[. . .]
(3) concerning the communication intelligence activities of the United States or any foreign government;
[. . .]
Shall be fined under this title or imprisoned not more than ten years, or both.
Definitions in the following subsection (b) makes clear the applicability of the act to the leakers and the leaked information:
The term "communication intelligence" means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;
The term "unauthorized person" means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.
If we can spend who knows how much and more than two years to investigate who said what to whom and when concerning the Plame name dropping, we can damned well spend the necessary resources to determine who told the Times about the NSAs secret intercept program of Al-Qaeda communications.