On the NSA, the dog will not bark.
Christopher Gregory/The New York Times
The jihad rages on, but the War on Terror is over.
There is no longer a national-security consensus — no longer the political support for wartime defense measures, much less offensive combat operations. While the enemy continues to fight, our will to break the enemy’s will has vanished. After a contentious week, that much is clear. The controversy swirling around shadowy intelligence programs hasn’t gotten to the bottom of those programs, but it tells us everything we need to know about . . . us.
Sir Arthur Conan Doyle’s dog that did not bark is a metaphor worn out by journalists. This week, though, the lack of a bark was loud and clear: The bark of the national-security Right defending the wartime powers of the presidency. For a variety of reasons, many of the protagonists have developed amnesia about how we came to have the programs now provoking all the cavil: the debates over the PATRIOT Act and FISA (the Foreign Intelligence Surveillance Act).
After a series of attacks through the Nineties, the 9/11 atrocities destroyed the World Trade Center, struck the Pentagon, and killed nearly 3,000 Americans. In the savage clarity, our nation finally realized that what I’ve called “kinetic Islam” — a combination of militant jihadists and their sharia-supremacist enablers — was at war with the United States. The PATRIOT Act was a product of our vigorous and persuasive contention, on the national-security right, that the challenge was an enemy force, not a criminal-justice problem. That challenge demanded a national war-footing, not judicial due process.
It was precisely this contention, moreover, that beat back the Left’s effort to intrude the judiciary into the collection of foreign intelligence — constitutionally, a paradigm executive function — when FISA was overhauled in 2008.
In fits and starts over the years, progressives and libertarians have aligned against the war, for different reasons. Hardwired to find American fault in every dispute, the Left is sympathetic to Islamic supremacism’s indictment against the United States, if not its barbaric methods. Libertarians have been wary because war inexorably enhances the power of the state at the expense of liberty — Big Government is more to be feared than the jihad.
That this fear is overstated does not mean it is frivolous. It is real, and has been stoked to a fare-thee-well by the “War on Terror.” The label itself betrays our cravenness. Unwilling to name the enemy for fear of giving offense, the government framed the challenge not as an aggressor but as an aggressive tactic. It encouraged Americans to go on with their lives as normal (lest “the terrorists win”).
Necessarily, this ensured that the public would notice the war only in the government’s defense measures against the tactic. These were thus certain to become more onerous; after all, that was how politicians too timid to say “Islam” or “jihad” proved they were tough on . . . er . . . “violent extremism.” But these defense measures, erosions of liberty and privacy, could be abided only as long as the public felt profoundly threatened. That feeling would certainly not last, no matter how long we had troops on faraway battlefields, if the public was not (a) invested in victory over our enemies; (b) persuaded that being molested at the airport and similar indignities had something to do with achieving victory; and (c) convinced that the lack of similar-scale attacks in the years after 9/11 was due to the defense measures.
The most compelling claim against the war effort, argued jointly by progressives and libertarians, was that there was no conceivable conclusion to a war of this nature. Wars against traditional enemies end when the enemy — usually, a nation-state — surrenders or strikes a treaty. But how can a war against a tactic end?
Consequently, the argument went, the War on Terror would go on indefinitely, and with it the metastasizing security state. This argument is now muted on the Left. Bush-deranged progressives turn out to be quite comfortable with a security state as long as one of their own is running it. But for libertarians, the argument has grown ever more heated.
Nothing, not even war, happens in a vacuum. Over the last six years, as libertarian angst churned over surveillance, detention, military commissions, and drone attacks, the progressive-lite GOP establishment gave way to hardcore Obama statism. As a result, libertarians, quite appropriately, have become a hugely influential opposition faction. They are a big part of the Tea Party’s energy, and the Tea Party is the dynamo of the Right. Increasingly, as the Right’s ne plus ultra has become stopping Big Government’s advance, conservatives and Republicans have been more willing to overlook libertarian objections to adhesive security measures — sometimes, even to see a good deal of sense in them.
Still, the left-libertarian fear of endless war was ill-conceived. That the war could not end in a conventional way did not mean it would not end — just that we’d need unconventional metrics to tell us it when was over. And because we eschew even naming the enemy, it is only natural that these metrics would involve ourselves, our sharply altered priorities.
How fitting, in our story, that the National Security Agency should serve as the stable where the watchdog failed to bark when Silver Blaze vanished.
It seems like only yesterday, though it was late 2005, when the New York Times disclosed the NSA’s warrantless wiretapping. In what President Bush dubbed the “Terrorist Surveillance Program” (TSP), the NSA globally monitored enemy communications — including those crossing U.S. borders — without court authorization. This was back in the days before President Obama systematically ignored statutes and court rulings, so the Left was not embarrassed to feign outrage over the TSP’s violation of FISA. Some Democrats even called for Bush to be impeached.
In response, the national-security Right barked ferociously. Bush was merely doing what had been done by every wartime commander-in-chief in American history, we countered. And he was doing it because it is the executive branch, not the judiciary, that is constitutionally responsible for protecting the nation and gathering intelligence against foreign enemy operatives. The federal courts had long acknowledged presidential supremacy in this realm. If something was unconstitutional, we proclaimed, it was not Bush’s effort to safeguard American lives but FISA’s design on usurping the president’s Article II powers.
The FISA controversy peaked in the latter half of Bush’s second term. Just as we on the national-security right had feared, an activist FISA court claimed the intelligence community needed judicial permission to eavesdrop even on non-Americans outside the United States. Quite apart from FISA’s dubious constitutionality, the statute was also stuck in the antediluvian technological world of 1978, the year it was enacted. Intended to target foreign agents operating inside our country, it was never meant to intrude on surveillance of aliens outside our borders. It thus focused on U.S. phone-company lines. But modern technology routes even foreign-to-foreign phone calls, e-mails, texts, and tweets through American telecom hubs. The FISA court exploited this evolution to claim that the NSA and CIA needed permission from a judge in Washington even to monitor, say, a jihadist in Afghanistan calling his emir in Pakistan.
Had such an absurd suggestion been made in 1978, FISA would never have passed. The ruling threatened to shut down foreign intelligence collection in the middle of a war against a secret international terror network. So the national-security Right, again, made strenuous arguments, rooted in precedent, that foreign intelligence was an executive-branch function in which the courts had no business interfering. The result, though far from perfect, was an overhaul of FISA that freed the president and the NSA to target foreign enemies for surveillance with minimal judicial oversight.
The same spirited defense of wartime executive power also informed the debate over the PATRIOT Act, very much including its controversial business-records provision — Section 215. Records of subscriber usage maintained by service providers such as telephone companies — called “third-party” records because they are the property of the provider, not the subscriber — enjoy no Fourth Amendment protection. They have always been freely subpoenaed, with virtually no judicial oversight, by law-enforcement agents exercising the executive branch’s police powers. The objective of the PATRIOT Act was to vest equal investigative authority in national-security agents (the FBI’s domestic-security division), on the theory that protecting our country from mass-murder attacks was a higher priority than probing, say, a run-of-the-mill check-kiting scheme.
To the contrary, the Left, which views counterterrorism as a law-enforcement issue, and libertarians, who are hostile to surveillance, wanted the FISA court to micromanage national-security investigations. Overwhelmingly, Republicans and conservatives countered that it was for the executive branch, not the judges, to decide what threats should be investigated. National-security agents, we insisted, should have at least as much license to compel third-party records as do prosecutors and police.
Our full-throated defense of executive power won the day. The national-security Right beat back the left-libertarian campaign to require the FBI to obtain a warrant from the FISA court in order to acquire business records. No proof of probable cause or reasonable suspicion would be required. In the negotiations, the losers were given a fig leaf: Unlike criminal investigators, the FBI’s national-security agents would have to represent — not prove, just represent — that the records were relevant to a legitimate national-security investigation. But it was meaningless: The executive branch would decide what was relevant, just as it does in law-enforcement cases. The FISA court would have no power to deny access to the business records.
In sum, a steady theme ran through the FISA and PATRIOT Act debates — the same debates we are having now. It is this: When the nation is at war, it is for the executive branch to calibrate the tension between liberty and security. Quite apart from their lack of expertise in intelligence matters, courts are not accountable to the people whose lives are at stake. Were they to draw lines too favorable to the enemy, we would have no recourse — something that is intolerable . . . when the nation is at war.
But not when it is not. And this week, we learned conclusively that we no longer perceive ourselves as a nation at war.
The NSA is in hot water again, but it is not doing anything different from what it was doing in the Bush years — under the authorities Republicans and conservatives won in the bruising battles over reauthorizing the PATRIOT Act and overhauling FISA. It is still collecting telephone-usage records (“metadata”) on millions of Americans (though not the content of their conversations). It is broadly targeting the communications of non-Americans outside the United States for surveillance — though some domestic American communications may inadvertently be picked up because the surveillance involves vacuuming up traffic as it zooms across U.S.-based servers.
There are significant judicial and legislative checks written into the relevant PATRIOT Act and FISA statutes to shield Americans from further government prying — the government’s acquisition of your data does not mean your data are being scrutinized. But belaboring these safeguards would miss the point. The brute fact is that public support for even the trivial degree of prying we now know about is cratering. Americans simply do not trust a government that has proved itself untrustworthy to refrain from abusing the system.
There are two reasons for this. First, by lopsided margins, Americans supported broad executive discretion in carrying out PATRIOT Act and FISA powers because we believed doing so was a wartime necessity. President Obama has now told us the war is over. After paying some lip service to the importance of the NSA programs, our reluctant commander-in-chief has mostly been AWOL as the debate rages. But that’s not the half of it. By summarily pronouncing the end of the war, he undermines the rationale for tolerating the programs in the first place.
It might conceivably be possible for a national-security Right to overcome that obstacle. After all, the enemy is still fighting — hard. Militant jihadists are still trying to commit mass murder. A couple of them did just that in Boston only two months ago. But that brings us to reason No. 2, that dog whose bark has gone silent.
There is no longer a dominant national-security Right. As many of us within the old national-security Right warned, it was a gargantuan error to link national security with the promotion of “Islamic democracy.” That initiative is now understandably seen as the empowerment of anti-American Islamists — it has degraded our security, and the credibility of its champions has duly suffered. Beyond that, Obama’s serial abuses of executive power, culminating (so far) in the IRS scandal, have raised the stock of libertarians, very much at the expense of security hawks.
Think about how dramatically things have changed in just two months. After the April 15 Boston Marathon bombing, many on the right were outraged when the surviving jihadist was whisked into civilian court right after capture. Notwithstanding that he is an American citizen and that the case for categorizing him as an enemy combatant is thin (to say the least), there was clamor for the executive branch to detain him as a war prisoner. Yet today, June 15, after a torrent of Obama abuses of power, some of the same conservative voices now demand that wartime national-security programs be dismantled and that the courts assume active management of foreign intelligence gathering.
To stem this tide would require a spirited defense of executive power. With the national-security Right collapsing into an anti-Obama Right, that dog won’t bark. Thus, the American war effort is at an end — just as the president told us he wanted it to be three weeks ago. By suddenly renouncing executive war power, Obama’s most dogged opponents have ironically helped him achieve one of his top objectives.
Here is the thing, though: Even if we’re done with the jihad, it is not done with us — not by a long shot. Therefore, it is no less delusional to forfeit the national-security arsenal essential for waging the war than it was for Obama to forfeit the war itself. I fear learning that lesson will prove very painful.