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By E. Ralph Hostetter
September 21, 2006
If the 3,000 victims of 9/11 had a choice to have the perpetrators of the 9/11 disaster exposed before they could act there would be no doubt about the answer. Their choice could have been between eavesdropping by the National Security Agency (NSA) on one of their own international private electronic communications or the tragedy itself. It’s that simple.
Today a debate rages on and off in the United States Courts and Congress over the Commander-in-Chief's right in time of war to expose terrorists and those suspected of terrorism through a program of electronic eavesdropping operated by NSA. Present law places such activities under Federal Judiciary supervision.
A special Federal Court, established by the Foreign Intelligence Surveillance Act of 1978, governs present privacy rules of electronic communications. The following information, reported in THE WASHINGTON POST in January of 2002, describes the manner in which suspected terrorists were handled prior to 9/11. August 15, 2001 — FBI was notified by a Pan Am Flight School instructor that a suspicious person, Zacarias Moussaoui, sought in-flight training only for large jets — could be a potential hijacker. August 16 — Moussaoui, a designated 9/11 hijacker, not known at the time, and now serving a life term in prison, was arrested by the FBI in Minneapolis and charged with overstaying his visa. August 17 — Moussaoui was interviewed while in INS (then called United States Immigration and Naturalization Service) detention. He claimed harrassment and racial and ethnic discrimination. This was the last interview.
FBI investigators in Minneapolis wanted to seek a criminal search warrant to inspect Moussaoui's laptop computer, then in FBI custody. During heated debates, from August 18 to 20, officials at FBI Headquarters opposed the request, arguing that investigators could not show probable cause that a crime had been committed. The FBI investigators' other option was a Foreign Intelligence Surveillance Authority (FISA) warrant. However, FBI and INS investigators had no evidence that Moussaoui was connected to a terrorist organization.
"We were in a box, there was really no way out of it," one official said, according to the POST article. The article continues, "Officials began discussing Plan B, deporting Moussaoui to his native country, France, along with the laptop where French authorities ... would seek a legal way to search his laptop. Within a week, the plan was set. Moussaoui and his laptop would be in France on September 17.”
And now you know the rest of the story. After 9/11 authorities sought and were immediately given a FISA warrant to open the laptop. THE POST reports: One official said there was nothing in the computer to link Moussaoui to terrorism. You've got to believe in the tooth fairy to believe that.
The U.S. House of Representatives has before it a bill, H.R. 5825, Electronic Surveillance Modernization Act, introduced July 18 of this year, an attempt to remove confusion and delay in authorizing President George W. Bush's and NSA's access to electronic communications with respect to exposing terrorists and those suspected of terrorism in the United States.
H.R. 5825 includes these two provisions, §7, Authorization after Armed Attack, and §8, Authorization of Electronic Surveillance after a Terrorist Attack. Under §7 the President has authority for a one-time period of 60 days for surveillance activity without authority by submitting to each member of the Intelligence Committee notification of the authorization under this section. Under §8 the President, acting through the Attorney General, may authorize electronic surveillance without an order under this title for a period of 45 days following a terrorist attack against the United States with notification to each member of the Intelligence Committee and a judge having jurisdiction.
These provisions seem rather strange. If the President had the authority before the attack that authority could very well be averted. Wasn't that a lesson of 9/11?
The United States Senate has before it S. 2453, a bill somewhat similar to H.R. 5825, introduced this March 16. The truth of the matter in both bills is protection of Congressional prerogatives vis-a-vis the Executive Branch. S.2453 sets forth in §801, Executive Authority: "Nothing in this act shall be construed to limit the Constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.”
Both H.R. 5825 and S. 2453 set forth the fact that the President has no authority to order NSA to eavesdrop on the suspected terrorists without the involved procedure of first convincing the Attorney General of the necessity for immediate action, then to be relayed by the Attorney General to every member of the two Congressional Intelligence Committees, and the FISA Court.
Haven't the bitter lessons of August and early September 2001 and the bureaucratic bungling with respect to judicial approvals, whether before or after, yet penetrated the fickle mind of some in Congress? Hasn’t it yet occurred to Congress that continued extension of Constitutional rights for the protection of the terrorists themselves endangers American lives and gives aid and comfort to the enemy?
As Commander-in-Chief, President George W. Bush has the responsibility to defend and protect the lives of American citizens. Therefore, he must have the authority to do so. The Congress must clarify the President’s right and give him the flexibility in time of war to order NSA to monitor electronic communications of terrorists from outside the United States to suspected terrorists within our country.
We are at war!
E. Ralph Hostetter, a prominent businessman and publisher, also is an award-winning columnist and Vice Chairman of the Free Congress Foundation. He welcomes email comments at eralphhostetter@yahoo.com.
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