War Power.

ATTORNEY GENERAL Alberto Gonzales went before the Senate Judiciary Committee to confront some of the staunchest critics of the Bush administration's terrorist-surveillance program. That program involves warrantless NSA monitoring of al-Qaeda's international communications, some of which go into or out of the United States. For nearly two months, leading Democrats and some Republicans have lambasted the program as heedless of civil liberties and illustrative of the president's placing himself "above the law."

The law they have in mind is the Foreign Intelligence Surveillance Act of 1978 (FISA), which governs most domestic monitoring of terrorists and spies, and outside whose strictures the NSA program operates. Gonzales addressed the hyperbolic suggestion--of Sen. Arlen Specter and others--that the NSA program is a "repeal by implication" of FISA. First, far from having "repealed" FISA, the administration continues to use it broadly and regards it as a valuable counter-terrorism (and counter-espionage) tool. The NSA program does not supersede FISA, but operates on the basis of authority unrelated to it: the executive power inherent in Article II of the Constitution, which has always given presidents primacy in both foreign relations and the collection of foreign intelligence. The FISA court of appeals has held that the president has inherent authority to conduct warrantless wiretapping, and, when the ACLU challenged that decision, the Supreme Court declined to review the case. (For a fuller account, see Byron York, "Listening to the Enemy," on page 22.) It is Congress, not the president, that strays above the law when it seeks to curtail the executive's authority.

FISA itself contemplates this authority, and Congress's sweeping authorization of the use of military force after 9/11 further supports it. The Supreme Court indicated in its Hamdi ruling that the authorization embraces all the fundamental incidents of waging war, which clearly include signals intelligence. Contrary to what some senators said at the hearing, the issue is not whether individual members of Congress thought they were authorizing wiretapping. Because legislators cannot predetermine the course of battle, use-of-force authorizations are general by design, and involve granting the commander in chief maximum flexibility to use the known tools of war. The impracticable alternative would be for the president to return to Congress to request specific support--and, in so doing, to educate the enemy--every time a new tactic seemed promising.

There is a reason that the Constitution makes the president-not Congress and certainly not judges--singularly responsible for national security. If al-Qaeda is ever to be successful in repeating 9/11, it must necessarily communicate with operatives inside this country. Effective surveillance of those communications--and effective response to the threats they reveal--depends on the kind of quick decision-making that only the executive branch can provide. The Senate hearing--veering as it did into territory having nothing to do with the NSA program, or else into questions about operational details that Gonzales could not disclose without compromising the program's effectiveness--was a perfect illustration of what national security by committee looks like. Thankfully, the Founders called for no such thing.