National Security Is a Video Game For Politicians

By Daniel Henninger

Did this week mark the first return steps to bipartisan sanity in the war on terror? The Senate Intelligence Committee approved Gen. Michael Hayden to run the CIA by a 12-3 vote. And by helpful coincidence, the Supreme Court decided 9-0 in Brigham City v. Stuart that the police can make a warrantless entry into a home in which people are in imminent danger of physical harm. As we all are now.
For awhile after 9/11 the war on terror was a serious national enterprise. Then it entered a twilight zone between the reality of terrorist killing and the abstractions of our domestic politics. The subject became a kind of political video game in which political partisans--the press, the pols, the bureaucracies--attempt to splatter each other. The best-selling version of the game has been Warrantless Wiretaps, introduced for political playstations by the New York Times.
The Times reported in December that President Bush had authorized a "secret" National Security Agency program run by Gen. Hayden to monitor international phone calls related to al Qaeda. Like most video games, the story line of Warrantless Wiretaps is crudely simple: President Bush sits at a console of electronic surveillance programs and tries to demolish "our most basic civil liberties," eviscerate the Foreign Intelligence Surveillance Act and trample the Constitution's Fourth Amendment. The person who has scored the most points playing Warrantless Wiretaps is GOP Sen. Arlen Specter, just ahead of Democratic presidential gamer Sen. Russ Feingold. The rest of the country has shown little interest in Washington's new game. In opinion polls about the NSA's surveillance programs, strong majorities essentially say, So what?
Something approximating "So what?" was the Supreme Court's answer this week to the proposition that the police might sometimes enter a home to prevent mayhem without a search warrant. Indeed Justice John Paul Stevens called it "an odd flyspeck of a case."
But it was a Fourth Amendment case. And we have little choice other than to apply the same Constitution to flyspecks and national tragedies, to brawling drunks in a Utah kitchen and al Qaeda agents plotting the next 9/11. Chief Justice John Roberts's opinion in Brigham is in fact a nice summary of the Court's thinking on the exceptions to requiring search warrants, what he called the Fourth Amendment's "ultimate touchstone" of "reasonableness." With apologies to Chief Justice Roberts for this legal leap, I am going to cross-apply the Fourth Amendment citations in the Court's no-brainer Brigham decision to the post-9/11 war on terror in the U.S.
"Reasonableness" was the benchmark most people were looking for amid the rancor over the warrantless wiretaps. Simply, are the anti-terror taps reasonable or not?
The Supreme Court's purpose in Brigham was to clear up confusions among lower courts about "the appropriate Fourth Amendment standard governing warrantless entry by law enforcement in an emergency situation." I'd call the terror war an emergency. Brigham said the Court has held that officers can make a warrantless entry "onto private property" to fight a fire, investigate its cause, prevent the imminent destruction of evidence, and engage in pursuit of a fleeing suspect. Al Qaeda qualifies as all four. Yet another precedent cited for "obviating the requirement of a warrant" is "the need to protect or preserve life." That sounds like the point of the war on terror, but some may disagree.
Because the kitchen fight had already began, "the officers had an objectively reasonable basis for believing . . . that the violence in the kitchen was just beginning." Osama bin Laden has recently broadcast a "reasonable basis" to believe the violence is "just beginning." The Court said, "Nothing in the Fourth Amendment required them to wait until another blow rendered someone unconscious, semiconscious or worse before entering." To stop the next al Qaeda attack, do we need a stricter test than we allow for kitchen fights?
In a final burst of Fourth Amendment common sense, the Court said, "The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties." This is what the ranting over Homeland Security's inadequacies has been about--preventing violence before the casualties begin. That is the purpose of recording these calls at the moment they sound dangerous, not after we've made paper submissions to a court.
In a helpful June 2002 essay on all this for the Yale Law Journal, "Local Policing after the Terror," William J. Stuntz, a Fourth Amendment specialist at Harvard Law School, argued that increasing legal authority for the police was appropriate in the post-9/11 world. The problem with Big Brotherism, he says, is not the surveillance itself but that they might use the information to "punish you for ordinary behavior." To avoid tying the war on terror in legalistic knots, he proposes that we forbid public disclosure of any information gathered in anti-terror searches "where the search tactic is secret and potentially invasive." Then restrict use of that information only for prosecutions of the most serious crimes.
This sounds like 9/11 policy for adults, in contrast to Washington's "shocked" reaction to the anti-terror surveillance programs. We began by saying the 12-3 Hayden vote was cause for hope. Small cause.
Daniel Henninger is deputy editor of The Wall Street Journal's editorial page.