This is the eleventh in an occasional series of exclusive articles in which leading conservatives who served in the Reagan Administration explain how they believe the principles of Reagan conservatism ought to be applied today and in the coming years. This week, Edwin Meese, who was Reagan’s first presidential counselor and then attorney general, addresses the necessity of intercepting terrorist communications and its constitutionality.
It is always risky, if not presumptuous, to declare how a former President would act in situations that have arisen more than 15 years after he left office. But there are valuable lessons to be learned from the example of the executive leadership set by Ronald Reagan and the principles that guided his decisions.
President Reagan believed that fidelity to the Constitution was the primary responsibility of every public official and that the solemn oath he took to preserve and protect our Founding Charter was a solemn trust. But he knew the document thoroughly and understood the powers it conferred on a President as well as the limitations it prescribed. As a student of history, particularly the founding of our nation, Reagan appreciated the role that the drafters of the Constitution set out for the chief executive, including the responsibilities of the commander in chief to insure the defense of the nation and its people.
Used During Cold War
That is why I believe Ronald Reagan would take the same position our current President and the Department of Justice took on the subject of the Terrorist Surveillance Program. Under this program the National Security Agency (NSA) intercepts and records international communications between a telephone located in a foreign country and one in the United States when one or both ends of the line involve known or suspected terrorists. Similar surveillance activity was utilized during the Cold War, including the period of Ronald Reagan’s presidency, to obtain intelligence about threats to our national security. At that time, this highly classified work was carried out in secret so as not to warn enemy agents of our surveillance capabilities. It is only in recent years that irresponsible news media elements have revealed the Terrorist Surveillance Program to the public, thus compromising a valuable means of thwarting terrorist threats to our country.
The controversy over the NSA's surveillance program is based on the contention of some that the Foreign Intelligence Surveillance Act (FISA) enacted in 1978 is the exclusive authorization of foreign intelligence surveillance and that any NSA activity must comply with all of its requirements. These opponents argue that even the President cannot order international communications interception without going through the FISA process, even in wartime.
History of FISA
But this view ignores the legislative history of FISA as well as the judicial determinations that have occurred since its enactment. Ronald Reagan believed that under the Constitution the President has the inherent authority, as the commander in chief, to direct a military intelligence agency, such as the NSA, to intercept enemy communications during wartime or when necessary to protect the national security. This has been the consistent position of every administration before and since the enactment of FISA. During congressional hearings on the FISA legislation during the Carter Administration, then-Atty. Gen. Griffin Bell testified that the FISA bill being considered could not interfere with the President’s inherent constitutional authority to order communications surveillance for intelligence purposes.
It is not only the lawyers in the White House and the Department of Justice who hold this view supporting executive authority for communications intelligence activities. Every court that has ever ruled on this issue, including the FISA Court of Appeals, has supported the view that a President has inherent constitutional power to authorize measures such as the Terrorist Surveillance Program and that this power is at its greatest during wartime. There is only one exception to this judicial record: the recent decision by a single federal district court judge who ruled against the NSA program. Her ruling has been extensively criticized by legal experts from widely differing political and philosophical viewpoints and lacks any legal or persuasive merit.
As he demonstrated during the Cold War, Ronald Reagan believed that a President should use every legitimate means to protect the nation. That is why he would understand that intercepting terrorist communications that might provide early warning about an attack similar to those on Sept. 11, 2001, is critical to our society. Further, he would know that obtaining such information is essential to establishing the reasonable cause to then obtain an electronic surveillance warrant under FISA so that further investigation can proceed.
President Reagan believed that our nation's chief executive should energetically use his authority as commander in chief in matters concerning national security. He demonstrated this in ordering the rescue operation in Grenada, in supporting the Freedom Fighters in Nicaragua and in dealing with the Soviet Union. I believe he would counsel that a President should do no less in terms of authorizing communications intelligence efforts that could save this country from another devastating terrorist attack.