August 24, 2006 | Commentary on National Security and Defense

The Wisdom of Wiretaps

Lawyers joke that if a prosecutor gets the right grand jury, it's possible to indict a ham sandwich. A recent ruling by a U.S. District Court judge suggests a corollary: A lawyer who shops around long enough can find a judge willing to issue a ruling that makes as much sense as indicting a sandwich.

After all, there are 91 federal districts and 646 district court judges. All are appointed for life. Odds are, you can locate at least one willing to put judicial activism ahead of the Constitution and our national security.

How else can we explain the recent ruling by Judge Anna Diggs Taylor that declares a National Security Agency program that intercepts suspected terrorist communications unconstitutional?

Even many administration critics who oppose the government's surveillance program agree that Judge Taylor's ruling is weak on precedent and reasoning and is unlikely to withstand scrutiny on appeal.

But while we wait for judges in higher courts to weigh in on this specific decision, here is what we know.

There are real threats that need to be stopped. The recent uncovering of a scheme to bomb up to 10 transatlantic flights traveling from Britain to the U.S. offers a fresh reminder.

Let's not forget that the London plotters communicated across continents. Pakistan is holding at least a dozen suspects. If their actions and communications hadn't been intercepted and monitored, they might not have been caught. That makes a pretty strong case for initiatives such as the NSA's intercept program. The idea of leaving international telecommunications on the Internet and cell phones as a terrorist sanctuary makes no sense.

We need strong measures to protect us from terrorists, and the Constitution presupposes that the president will provide them. There is also no question that it empowers the commander-in-chief to act in wartime to protect the nation. To argue against that would, as former Justice Department official David Rivkin notes, intrude upon "the president's core constitutional authority."

Even so, this was a needless debate to begin with. This judicial tug-of-war over the scope of the president's war powers could have been avoided.

The controversy over this wrongheaded judicial decision obscures a simple fact: We can retain this effective counterterrorism program and have appropriate oversight from the judicial system. All that's required is for Congress to update the Foreign Intelligence Surveillance Act (FISA), which establishes procedures for issuing warrants for covert surveillance programs, thereby ensuring secrecy and protecting individual liberties.

Passed in 1978, FISA didn't anticipate the development of global communication networks or advanced technical methods for intelligence gathering. The current law is inadequate and must be updated.

The irony of the judge's decision is that it will likely spur Congress to act and ensure that the agency's intercept procedures remain an effective weapon in the War on Terror. Before its summer break, the Senate Judiciary Committee introduced a bill that would do just that. Congress likely will take up the measure when it returns from recess, and there's a good chance it will pass.

Democracy, after all, isn't a suicide pact. It accepts that government can help make us both safe and free. Quick action by Congress will contribute to both -- if lawmakers care to act more responsibly than Judge Taylor did.

James Carafano is Senior Research Fellow for National Security and Homeland Security at The Heritage Foundation (heritage.org), and author of the new book "G.I. Ingenuity."

About the Author

James Jay Carafano, Ph.D. Vice President for the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, and the E. W. Richardson Fellow

Distributed nationally on the McClatchy Tribune wire