War by Other Means: An Insider's Account of the War on Terror

by John Yoo

  Fire rained down not only from the left, but also from the right. Well-known conservative columnist George Will wrote in the Washington Post that the Bush administration had created a new danger by arguing that "because the president is commander in chief, he is the 'sole organ for the nation in foreign affairs.'" Will continued: "That non sequitur is refuted by the Constitution's plain language, which empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws 'necessary and proper' for the execution of all presidential powers," Will continued. "Those powers do not include deciding that a law--FISA, for example--is somehow exempted from the presidential duty to 'take care that the laws be faithfully executed.'"5

  Will and other critics fail to understand that the Constitution grants the President the leading role in foreign affairs. The statement that the President is the "sole organ for the nation in foreign affairs" was not manufactured by the Bush administration, but in fact comes from a 1936 Supreme Court case that recognized the President's control over diplomacy and the setting of foreign policy.6 Congress as a whole does not ratify treaties. The Senate participates in advising and consenting to treaties in its executive capacity (treaties are discussed in the Constitution's Article II, where the presidency is established), but only after the President has negotiated and signed the treaty.7 The President can even choose not to send a negotiated treaty to the Senate, or refuse to "make" the treaty after the Senate has approved it. The treaty power does not belong to Congress. The Constitution's Necessary and Proper Clause gives Congress the power to implement the other powers of the government. It does not allow Congress to change the separation of powers in its favor by reducing the powers of the President. Finally, the President has the duty to take care that the laws are faithfully executed, but because the Constitution is the highest form of federal law, the President cannot enforce acts of Congress which are unconstitutional. Will seems to believe the Commander-in-Chief Clause is substantively empty, and that its sole function is to execute the war policies of Congress. What Will and other critics neglect is the President's war power.

  In the Wall Street Journal, Richard Epstein, perhaps the nation's leading libertarian legal scholar, also argued that Congress has the upper hand in setting war policy.8 He believes that Congress's powers to declare war, to make rules for the regulation of the armed forces, and to fund the military allow it even to prohibit the military from using live ammunition in combat. Epstein does have a broader view than Will of the Commander-in-Chief Clause, which he suggests guarantees civilian control over the military and prevents Congress from issuing orders or evading the chain of command. Epstein writes: "The precise detailed enumeration of powers and responsibilities in Article II just do not confer on the president a roving commission over foreign and military affairs. He is a coordinate player, not a dominant one." At best, he would allow the President to interpret, but not override, Congress's decisions when confronting a new situation such as the 9/11 attacks.

  Epstein's nuanced arguments are more rooted in the constitutional text, but they are no more convincing. Americans historically have understood the Commander-in-Chief Clause to be more than just a designation of the President as the top of the military chain of command. The Founders would have understood a commander in chief as having authority over when to resort to military hostilities and how to conduct them. Article II of the Constitution also vests the President with "the executive power," which, in Justice Scalia's words, "does not mean some of the executive power, but all of the executive power."9 Political theorists at the time of the framing considered foreign affairs and national security as quintessentially executive in nature, and our Constitution creates an executive branch that can act with unity, speed, and secrecy to carry out those functions effectively.10 Congress has important powers, such as the power to issue rules to regulate and govern the military, which gives it the sole authority to set the rules of military discipline and order. But the Constitution nowhere vests in Congress any explicit authority to dominate national security policy, nor gives it an outright veto over executive decisions in the area.11

  More broadly, these critics misunderstand the Constitution's allocation of war-making powers. The Constitution vests in the President the authority and the responsibility to prevent future attacks against the United States, a power reaffirmed by Congress with the Authorization for Use of Military Force in 2001. The Constitution does not create a legalistic process of making war, but rather gives to the President and Congress different powers that they can use in the political process to either cooperate or compete for primacy in policy.12 To exercise that power effectively, the President must have the ability to engage in electronic surveillance that gathers intelligence on the activities of the enemy.

  No one seems to doubt that the information gained from the NSA program has led to the prevention of al Qaeda plots against the United States.13 According to General Michael Hayden, the new director of the CIA and leader of the NSA during much of the program's existence, "this program has been successful in detecting and preventing attacks inside the United States." When pressed by reporters whether it had succeeded where no other method would have, he said, "I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available."14 Attorney General Alberto Gonzales informed the press that the NSA program was perhaps the most classified program in the U.S. government, and that it had helped prevent attacks within the United States. The main criticism has not been that it has been ineffective, but that it violates the Constitution and cannot be undertaken, no matter how necessary the program is and how successful it has been.

  I.

  OLC legal work on the program remains classified. But after the leak of the program's existence, in January 2006, Justice released a forty-two page white paper, which defended its legality and explained the DOJ's legal thinking on warrantless surveillance.15 I agree with most of the explanation. But the crucial question left unanswered was: Why, as a matter of policy, would the Bush administration operate outside FISA, especially after going to great lengths to pass the Patriot Act?

  The Patriot Act made valuable improvements in our intelligence laws, but it still only updates the pre-9/11 law enforcement approach to national security. The Patriot Act assumes that the government already has enough information to believe that a target is the "agent of a foreign power" before it even asks for a warrant--just as in the criminal justice system, the police must have probable cause in order to act on the belief that someone is involved in criminal activity. FISA operates within a framework that assumes that foreign intelligence agents are relatively simple to detect. In the past, they were usually foreign embassy officials working for a hostile nation and the goal was to build as large a file on their activities and contacts as possible. FISA's drafters had in mind, as a typical case, a Soviet KGB agent operating undercover as a diplomat.

  Al Qaeda poses a very different challenge. We do not have a list of diplomats to work from, or an embassy to watch. An intelligence search, as Judge Posner has described it, "is a search for a needle in a haystack."16 Rather than being able to focus on foreign agents who are already known, counterterrorism agencies must search for clues among millions of potentially innocent connections, communications, and links. "The intelligence services," Posner writes, "must cast a wide net with a fine mesh to catch the clues that may enable the next attack to be prevented."17 Our best information about al Qaeda will be scattered and tough to gather, and our agents need to be able to follow many leads quickly, and to move fast on hunches and educated guesses.

  Members of the al Qaeda network can be detected by examining phone and e-mail communications, as well as evidence of joint travel, shared assets, common histories or families, meetings, and so on. As the time for an attack nears, al Qaeda operatives communicate to coordinate plans, move and position assets, and conduct reconnaissance of targets, "chatter" on their network will increase. When our intelligence a
gents locate or capture an al Qaeda member, they must be able to move quickly on whatever new information they gather to find other operatives. It is more important to chase them down quickly inside the United States than outside. NSA critics want to place bureaucratic impediments precisely where the danger to America is greatest and flexibility is most important.

  Take the example of the 9/11 hijackers. Links suggested by commercially available data could have turned up ties between every single one of the al Qaeda plotters and Khalid al Mihdhar and Nawar al Hazmi, the two hijackers known in the summer of 2001 to have been in the country.18 CIA agents had identified Mihdhar as a likely al Qaeda operative because he was spotted at a meeting in Kuala Lumpur and was mentioned in Middle East intercepts as part of an al Qaeda "cadre." Hazmi too was known as likely to be al Qaeda. They had rented apartments in their own name and were listed in the San Diego phone book. Both Mohammed Atta, the leader of the 9/11 al Qaeda cell, and Marwan al-Shehi, who piloted one of planes into the World Trade Center, had lived there with them. If our intelligence services had been able to immediately track their cell phone calls and e-mail, it is possible that enough of the hijacking team could have been rounded up to avert 9/11. Today our task is much more difficult because we might not have even this slender information in hand when the next al Qaeda plot moves toward execution.

  As we have pursued the Afghanistan and Iraq wars, we have captured al Qaeda leaders as well as their laptops, cell phones, financial documents, and other instruments of modern high-tech life. This gave us information on hundreds of e-mail addresses, telephone numbers, bank and credit account numbers, and residential and office addresses used by their network. Our intelligence services must be able to follow these leads as fast as possible, before the network of al Qaeda operatives fades. An e-mail lead can disappear as fast as it takes someone to open a new e-mail account. Our agents need to move even faster.

  FISA creates several problems. It requires "probable cause" to believe that someone is an agent of a foreign power before the government can get a warrant to collect phone calls and e-mails. An al Qaeda leader could have a cell phone with a hundred numbers in its memory, ten of which are in the United States and thus require a warrant. Would a FISA judge have found probable cause that the users of those ten numbers were al Qaeda agents? Probably not. Our intelligence agencies would not immediately know who was using those numbers--or, for that matter, e-mail addresses--at the time an al Qaeda leader was captured?

  In this high-tech world, FISA imposes slow and cumbersome procedures on our intelligence and law enforcement officers. These laborious checks are based on the assumption that we are looking back-ward in time at crimes in order to conduct prosecutions, rather than looking forward in order to prevent attacks on the American people. FISA requires a lengthy review process, in which special FBI and DOJ lawyers prepare an extensive package of facts and law to present to the FISA court. The attorney general must personally sign the application, and another high-ranking national security officer, such as the President's national security adviser or the director of the FBI, must certify that the information sought is for foreign intelligence.19 It takes time and a great deal of work to prepare the warrant applications, which can run a hundred pages long. While there is an emergency procedure that allows the attorney general to approve a wiretap for seventy-two hours without a court order, it can be used only if there is no time to obtain an order from the court and if the attorney general can find that the wiretap satisfies FISA's other requirements.20 Even within seventy-two hours our leads could go stale.

  Blindly following FISA's framework will also hamper efforts to take advantage of what is known as "data mining." Data mining combines powerful computers and advanced algorithms to analyze vast amounts of information for patterns of behavior. In the United States, corporations employ data mining techniques to market products, like credit cards and magazine subscriptions, and to identify likely buyers based on their income level, geographic location, and purchasing and travel histories. Financial companies analyze various patterns of behavior to discover suspicious activity that might suggest someone has stolen a credit card or account number, and airline security uses a simple variant when it identifies passengers for extra security screening--a foreign citizen buying a one-way, full-fare ticket, in cash, on the day of the flight would likely trigger a second look from airline security personnel. Government data mining theoretically could compile information from government, public, and commercial databases to allow investigators to search for patterns of behavior that might correlate with terrorist activity.

  Data mining is an innovative counterterrorism tactic to detect and prevent future al Qaeda attacks. Rather than merely hoping that an agent will one day penetrate al Qaeda's inner circles, a dubious possibility, or that we will successfully seal our vast borders from terrorists, data mining would allow us to see patterns of activity that reveal the al Qaeda network before it can attack. Computerized pattern analysis could quickly reveal whether anyone linked to al Qaeda had made large purchases of chemicals or equipment that could be used for explosives or chemical weapons, we could learn whether he had traveled regularly to certain cities, and we could discover where he had stayed and who he had called in those cities.

  Civil libertarians complain that almost all transactions of this nature--calling, e-mailing, spending money, traveling--are innocent; we engage in them every day. But that is exactly why al Qaeda has trained its operatives to use these as tools to conceal their plots. Al Qaeda's leaders understand that it is difficult to analyze billions of transactions and interactions every day in order to detect their cells, and they realize that Western societies impose legal obstacles on government access to such information. Civil-libertarian critics don't seem to have noticed that our government already employs modest forms of data mining to track down criminals and terrorists. In response to drug cartels and organized crime, our government has used simple data mining to track and analyze money flows for years. Banks and financial institutions provide records of financial transactions to the Department of the Treasury, which searches for patterns of money laundering activity.21 While the great majority of the transactions are legal, the information can piece together proof of criminal links after a conspiracy has been stopped, or it can help indicate suspicious activity that demands further investigation. Analyzing money flows has also proven to be an important tool in detecting and breaking up terrorist networks.

  Civil libertarian overreaction can be seen in the outcry in the wake of a revelation, in May 2006, that the NSA had sought call information from phone companies without a warrant.22 Apparently the NSA obtained billing information on millions of phone calls within the United States, the same information used by telephone companies for billing and marketing purposes. According to USA Today, the data had been stripped of names and addresses, but still contained the phone numbers of the calls. President Bush addressed the country to say that he had ordered the government to do everything it could to prevent a future attack while also protecting Americans' privacy. "Al Qaeda is our enemy, and we want to know their plans," he said, without confirming the program's existence.23 Senator Patrick Leahy expressed outrage and suggested that the government was watching every American for terrorist ties. "Are you telling me tens of millions of Americans are involved with al Qaeda?" he railed at a hearing the day after the USA Today story.24 Harold Koh, dean of the Yale Law School, called the disclosure "quite shocking" and said the courts would never have approved it. House Democrats called for a special prosecutor to investigate.

  Privacy concerns here are exaggerated. The Supreme Court has found that such information does not receive Fourth Amendment protection because the consumer has already voluntarily turned over the information to a third party.25 It is not covered by FISA because no electronic interception or surveillance of the calls has occurred. Meanwhile, the data is potentially of enormous use in frustrating al Qaeda plots. If our agents locate the members of an al Qaeda sleeper ce
ll by a U.S. phone number found in a captured al Qaeda leader's cell phone, call pattern analysis could allow NSA to quickly determine the extent of the network and its activities when time is of the essence.

  Through all the outrage, critics usually downplayed the limited nature of the data provided--it did not provide the content of the calls, only the billing data, devoid of information that could identify an individual. Critics feverishly prepared to use the confirmation hearings for General Hayden, whom President Bush nominated to head the CIA, as a platform to accuse the government of yet another invasion of privacy. I met Hayden several times in various briefings and discussions after 9/11. A soft-spoken man, he does not fit the popular image of a four-star general. He is a conscientious, careful, and honest officer who cares deeply about protecting the nation from attack but understands that security must be balanced with privacy rights. He does not believe that one interest trumps the other. In meetings, he was a straight shooter, clear and up front about the upsides and downsides of any program or idea. He is easier to imagine as a physics professor than a Patton shouting orders on the battlefield. Of course, his battlefield is the ethereal world of the Internet and instant communication, not France and Germany. Members of the Senate Intelligence Committee, who had earlier been briefed on the program, asked Hayden some tough questions, but recommended him to the Senate, which confirmed him before the month was out. For once, common sense had prevailed.

  Another example of civil libertarian overreaction is the ill-fated and ill-named "Total Information Awareness" (TIA) program proposed by the Defense Advanced Research Projects Agency (DARPA) under Admiral John Poindexter, who had resigned from his job as Reagan's national security adviser under the cloud of the Iran-contra affair. TIA proposed the use of supercomputers to data mine both government and commercial databases to spot potential terrorist activity. Civil libertarians, both on the left and the right, engaged in a scare campaign against TIA--representing it as a big brother attempt to spy on Americans without any safeguards--before any significant research on the project had even begun. William Safire in the New York Times raised the alarm with the claim that the Defense Department would create "computer dossiers on 300 million Americans" and that Poindexter wanted to "snoop on every public and private act of every American."26 An outpouring of criticism led Poindexter to resign and Congress to cut off funding for TIA before any research on it, which could have included a full analysis of privacy concerns, had begun.